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CAUSES  AND  CURES 

OF 

CRIME 


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CAUSES  AND  CURES 

OF 

CRIME 


BY 


THOMAS  SPEED  MOSBY 

Member  of  the  American  Bar;  Former  Pardon  Attorney  of  the  State  of 
Missouri:  Member  American  Institute  of  Criminal  Law  and  Crim- 
inology.   Author  of  "Capital   Punishment,"  "Youthful 
Criminals,"   "Alcoholism  and  Crime,"  "Mothers 
of  Bad  Boys,"  and  Other  Essays 


ILLUSTRATED 


ST.  LOUIS 

C.  V.  MOSBY  COMPANY 

1913 


m.  ' 


Copyright,  1913,  by  C.  V.  Mosby  Company 


Press  of 

C.  V.  Mosby  Company 

St.  Louis 


PREFACE. 

The  cost  of  crime  in  the  United  States  now 
amounts  to  one-third  the  total  cost  of  the  gov- 
ernment, and  the  burden  is  yearly  increasing. 
Crime  is  seven  times  more  prevalent  in  this  coun- 
try now,  in  proportion  to  population,  than  it  was 
sixty  years  ago.  According  to  Professor  Kelli- 
cott  of  Goucher  College,  one  in  every  thirty  per- 
sons in  the  United  States  is  now  defective  or 
dependent,  or  both  defective  and  dependent. 
These  facts  constitute  the  author's  apology  for 
this  attempt  to  engage  the  public  attention  at  this 
time,  in  this  manner,  and  upon  this  subject. 

When  Blackstone  wrote  his  commentaries  upon 
the  common  law  of  England,  he  gave  as  one  of 
his  reasons  for  so  doing  a  desire  to  epitomize, 
in  a  manner,  and  to  popularize,  an  intricate  but 
important  branch  of  learning,  and  at  the  same 
time  he  expressed  the  belief  that  every  gentle- 
man ought  to  be  familiar  with  the  common  law. 
For  a  much  greater  reason,  at  this  day,  every 
man  and  woman  who  feels  an  interest  in  civili- 
zation, who  prefers  racial  improvement  to  racial 


Causes  and  Cures  of  Crime 

deterioration  and  degeneracy,  and  who  would  fos- 
ter the  upward  growth  of  society  rather  than  wit- 
ness its  disintegration,  must  aspire  to  a  degree 
of  familiarity  with  the  comparatively  new  science 
of  criminology. 

In  the  attempt  to  treat  in  a  popular  style  so 
abstrusely  technical  a  subject,  ramifying,  as  it 
does,  through  all  the  mazes  of  sociological,  bio- 
logical, physiological  and  psychological  science, 
the  author  has  essayed  a  difficult  task,  and  is 
by  no  means  oblivious  of  his  own  limitations  in 
that  attempt.  He  who  ventures  into  this  field 
must,  like  Bacon,  take  all  knowledge  for  his 
province.  Nothing  which  in  anywise  aifects 
human  life  is  foreign  to  the  student  of  criminology. 

In  his  arrangement  of  the  book  the  author  has 
but  observed  the  subdivisions  which  naturally 
suggest  themselves,  and  into  which  the  subject 
logically  falls,  i.  e.,  etiology,  prophylaxis  and 
therapeutics.  The  reader  will  understand,  of 
course,  that  nothing  like  a  complete  treat- 
ment of  the  subject  can  be  comprised  in  so 
small  a  volume.  First,  an  attempt  is  made 
to  adumbrate  the  primal  factors  in  crime 
causation,  under  the  respective  headings  of  Cos- 
mic, Social  and  Individual  factors  of  crime.  Hav- 
ing thus  gained  an  idea  of  the  principal  causes 
which  operate  as  inducements  to  crime,  we  are 
then,  in  the  logical  order,  to  consider  in  what 
manner  crime  is  to  be  prevented.  Various  pre- 
ventative studies  are  presented  in  the  chapters  on 
Eugenics,  Asexualization,   Education  and  Social 

ir 


Preface 

Amelioration.  Finally,  the  reader  is  invited  to 
consider  the  cures  of  crime,  as  suggested  in  the 
last  three  chapters  of  the  volume — The  Theory 
of  Punishment,  Indeterminate  Sentence  and  Pa- 
role, and  The  New  Penology. 

Throughout  the  volume,  the  author  has  sought 
to  discover  and  portray  the  present  status  of 
scientific  investigation  upon  the  various  topics 
treated,  and  has  quoted  freely  from  the  leading 
authorities,  sometimes  with  approval,  sometimes 
for  the  purpose  of  recording  a  firm  dissent,  but 
always  with  profound  respect  for  the  great  minds 
who  have  preceded  him  in  this  field  of  important 
research. 

The  suppression  of  crime  is  not  at  all  a  legal 
question.  It  is  rather  a  problem  for  physicians 
and  economists.  This,  it  is  believed,  will  be  fairly 
evident  to  all  who  peruse  these  pages.  We  shall 
find,  too,  that  the  habits  of  life  and  thought  which 
make  for  health  of  mind  and  body  likewise  mili- 
tate against  crime ;  that  physical,  social  and  moral 
diseases  abide  in  the  same  diathesis;  that  there 
is  a  physical  basis  of  morals,  as  well  as  a  spiritual 
basis  of  life;  and  that,  in  the  study  of  normal 
and  adnormal  man,  we  can  no  more  consider  him 
as  an  animal  without  a  soul  than  as  a  purely  men- 
tal phenomenon  without  a  physiological  basis. 

But  the  volume,  perhaps,  were  best  left  to  speak 
for  itself.  At  least,  it  may  interest,  if  it  fail  to 
instruct;  and  if  it  shall  in  anywise  tend  to  pro- 
mote the  advancement  of  learning  by  stimulating 
a  public  interest  in  the   all-important  problems 


Causes  and  Cures  of  Crime 

herein  presented  and  discussed,  the  author's  task 
will  not  have  been  essayed  in  vain. 

For  courtesies  extended  and  valuable  assistance 
rendered  the  author  begs  to  acknowledge  his  in- 
debtedness to  Col.  William  Young,  Chief  of 
Police,  Mr.  Samuel  Allender,  Chief  of  Detec- 
tives, and  Mr.  J.  M.  Shea,  Bertillon  Superin- 
tendent, of  the  St.  Louis  Police  Department; 
and  to  Hon.  William  C.  Reynolds,  Police 
Commissioner,  and  Mr.  William  C.  Gordon,  Ber- 
tillon Operator,  of  the  Kansas  City  Police  De- 
partment. Both  the  St.  Louis  and  the  Kansas 
City  police  departments  at  this  time  are  singu- 
larly free  from  the  abuses  which  have  often  pre- 
vailed in  the  police  departments  of  many  Ameri- 
can cities. 

Thomas  Speed  Mosby. 

Jefferson  City,  Missouri, 
August  1,  1913. 


vi 


CONTENTS 


PART  I. 

Etiology. 

CHAPTER.  PAGE. 

I.  COSMIC  FACTORS  OF  CRIME 1-13 

Indications  of  cosmic  influence,  1;  Telluric  influ- 
ence upon  cretinism,  2;  Combes'  investigations  con- 
cerning German  school  children,  2;  Low  tempera- 
tures involve  kinetic  energy,  2 ;  Effects  upon  lower 
animals,  2;  Crimes  against  person  most  numerous 
in  warm  climates,  3;  MacDonald's  diagrams,  4; 
Enrico  Ferri's  demonstration,  5;  Crime  in  United 
States,  6;  Minimum  of  murder,  suicide  and  rape  in 
January  and  December,  6;  Effects  of  Arctic  tem- 
perature, 7;  Effects  of  heat  on  dense  populations, 
8;  Nerve-tension  and  heat,  9;  Boerhave's  laconic 
advice,  9;  Violence  in  mountainous  regions,  11; 
Cosmic  influence  not  a  controlling  factor,  12. 

II.  SOCIAL  FACTORS  OF  CRIME 14-47 

Social  conditions  alone  do  not  explain  crime,  14; 
Small  and  Vincent  quoted,  15;  Dangers  of  political 
apathy,  16;  Importance  of  prosecutor's  office,  17; 
Gov.  Folk's  discovery  of  "white  slavery"  in  St. 
Louis,  19;  The  law's  delay,  20;  Evils  of  multiplicity 
of  statutes,  21;  Efficacy  of  the  referendum,  23;  War 
as  a  homicidal  insanity,  24;  Relative  influences  of 
rural  and  urban  life,  27;  MacDonald,  Aubry  and 
Lombroso  upon  publication  of  news  of  crime,  30; 

vii 


Causes  and  Cures  of  Crime 


Psychology  of  the  mob,  31;  Poverty  and  wealth,  34; 
Education  and  illiteracy,  36;  Lack  of  religion  a 
cause  of  crime,  37;  Divorce,  43;  Report  of  the  Chi- 
cago Vice  Commission,  44;  The  home  as  the  stand- 
ard of  a  nation's  life,  47. 

III.  INDIVIDUAL  FACTORS  OF  CRIME 48-81 

Criminality  approximates  pathology,  48;  Atavism 
and  crime,  49;  The  American  Indian,  50;  The  gam- 
bling instinct,  51;  Physical  characteristics  of  crimi- 
nals, 53;  Psychical  peculiarities,  55;  Religion  of  the 
criminal,  59 ;  Crime  and  precocity,  59 ;  Insanity  and 
crime,  62;  Studies  of  habitual  criminals,  65;  Hered- 
itary tendencies  not  always  controlling,  68;  Auto- 
toxemia  and  crime,  69;  Cranial  trauma  and  its 
remote  results  in  individual  cases,  70;  Alcoholism 
and  crime,  73;  Use  of  tobacco  among  criminals,  79; 
The  drug  habit,  80;  Sexual  promiscuity  of  crimi- 
nals, 81;  Abnormally  high  percentage  of  syphilis  in 
prisons,  81;  The  criminal's  insanitary  and  unhy- 
gienic life,  81. 


PART   II. 

Prophylaxis. 
iv.  eugenics 82-110 

First  International  Eugenics  Congress,  82;  Gallon's 
definition  of  the  "new  science,"  82;  Hereditary 
transmission  of  physical  traits,  83;  Lamarck's 
Fourth  Law,  83;  Mendel's  Law,  83;  Application  of 
these  laws  to  animal  breeding,  84;  The  study  of 
human  heredity,  86;  Hereditary  transmission  of  in- 
tellectual traits,  88;  Diverse  views  of  Ribot  and 
Royse,  88;  Views  of  Prof.  Yerkes  of  Harvard,  89; 
Schuster's  investigations  at  Oxford,  89;  Criminal 
genealogies  by  Poellmann,  Dugdale,  Jorger,  McCul- 
loch  and  Stocker,  90;  Genius  and  Heredity,  96;  Im- 
portance of  research,  99;  Need  of  statistical  data, 
100;  Regulation  cf  marriage,  106. 

TiU 


Contents 

CHAPTER.  PAGE. 

V.  ASEXUALIZATION 111-129 

Dr.  Gideon  Lincecum's  advocacy  of  castration.  111; 
Rentoul's  operation  of  vasectomy,  111;  Warbasse 
quoted,  112;  Operation  would  not  decrease  illicit 
sexual  commerce,  112;  Laws  of  various  American 
States  authorizing  sterilization  of  criminals  and  de- 
fectives, 113;  Model  statute  recommended  for  Wis- 
consin, 116;  Opinion  of  Washington  Supreme  Court, 
118;  Operation  of  vasectomy  first  performed  in  In- 
diana, 123;  Constitutionality  of  vasectomy  estab- 
lished, 127;  Not  so  effective  as  asexualization  be- 
cause of  failure  to  destroy  power  to  spread  venereal 
disease,  128. 

VI.  EDUCATION 130-159 

Lleber's  view  that  crime  is  due  to  want  of  fixed 
occupations,  130;  Physical  training  urged  two  cen- 
turies ago,  130;  First  trade  school  in  America, 
131;  Recommendations  of  Pennsylvania  legisla- 
ture, 131;  Views  of  Dr.  G.  Stanley  Hall,  133;  Lack 

of  trade  education  a  cause  of  crime,  134;  Law  of 
Solon,  139;  Views  of  Juvenile  Court  Judges,  139; 
Principles  of  brain  development  according  to  Dr. 
Frank  Lydston,  141;  American  industrial  suprem- 
acy threatened  by  Inefficiency  of  labor,  147;  Train- 
ing of  youth  should  be  physical,  mental  and  moral, 
148;  Examples  of  Egypt,  Greece  and  Rome,  150; 
Modern  spirit  of  industry,  152;  The  problem  of 
child-idleness,  153. 

VII.  SOCIAL  AMELIORATION   160-211 

Economic  justice  essential  to  social  and  civic  bet- 
terment, 160;  Liberty  necessary  to  good  morals, 
160;  Equality  of  opportunity,  161;  Centralization  of 
power,  as  seen  by  Spencer,  Ferri  and  Lombroso, 
174;  Initiative  and  referendum,  175;  The  feminine 
suffrage,  176;  The  public  defender,  187;  Reparation 
for  wrongful  prosecution,  189;  Right  of  convict's 
family  to  his  wages,  190;  The  Detroit  plan,  192; 
Juvenile  Courts,  198;  Philanthropic  institutions  of 
London  and  Geneva,  204;  Police  Reform,  207; 
Forms  of  social  amelioration,  210. 


Causes  and  Cures  of  Crime 


PART  III. 
Therapeutics. 

CHAPTER.  PAOB. 

VIII.  THE  THEORY  OF  PUNISHMENT 212-275 

Cruelty  of  punishments  among  savages,  212;  Com- 
pensatory retaliation,  213;  Salic  and  Burgundian 
laws,  214;  Torture,  215;  The  State's  right  to  pun- 
ish, 219;  The  value  of  punishment,  224;  The  death 
penalty,  226;  Determining  the  measure  of  culpa- 
bility, 254;  The  individualization  of  punishment, 
277;  The  pardoning  power,  263;  Criminal  punish- 
ments should  be  adjusted  with  a  view  to  the  cure 

of  crime,  275. 

IX.  INDETERMINATE  SENTENCE  AND  PAROLE. 276-334 
World-wide  unanimity  in  favor  of  indeterminate 
sentence  and  parole,  276;  Parole  system  suggested 

by  Herbert  Spencer,  276;  Recommendation  of 
Eighth  Annual  Prison  Congress  of  America,  278; 
Necessity  of  expert  knowledge  on  part  of  parole 
boards,  278;  Work  of  American  Institute  of  Crimi- 
nal Law  and  Criminology,  280;  Laws  of  United 
States  and  various  American  States  on  parole  sys- 
tem, 281;  Statistics  of  parole  officer  of  California, 
331. 

X.  THE  NEW  PENOLOGY 335-354 

Abolition  of  the  penitentiary,  335;  Reformatory  sys- 
tem most  effective,  336;  Evils  of  spoils  sys- 
tem in  prisons,  338;  Probation  for  first  offenders, 
340;  Institutions  for  the  criminal  insane,  334; 
Scientific  instruments  for  detecting  degeneracy, 
336-351;  Classification  of  criminals,  346;  "The  let- 
ter killeth,  but  the  spirit  giveth  life,"  354. 


I 


CAUSES  AND  CURES  OF  CRIME. 


PART    I. 
ETIOLOGY. 


CHAPTER  I. 

Cosmic  Factors  of  Crime. 

Only  in  recent  years  has  the  cosmic  factor  been 
seriously  considered  among  the  predisposing 
causes  of  crime,  and  while  the  data  compiled  by 
the  assiduous  labors  of  a  number  of  eminent 
scientists  do  not  fully  determine  the  precise  extent 
of  such  influence,  yet  they  are  sufficient  to  indicate 
its  existence,  and,  in  some  degree,  its  nature.  The 
mental,  moral  and  physical  conditions  of  man  are 
always  affected  by  conditions  of  seasons,  climate 
and  configuration  of  the  earth's  surface,  as  shown 
by  Lacassagne,  Garraud,  Bernard  and  Oettingen, 
among  others.     In  some  of  the  goitrous  districts 

I 


Causes  and  Cures  of  Crime 

of  Europe  cretinism  is  known  to  have  diminished 
after  drainage  of  the  marshes,  thus  indicating  a 
telluric  influence  upon  this  species  of  degeneracy. 
Combe^  has  observed  that  children  born  in  sum- 
mer are  taller  than  those  born  in  winter.  Dexter^ 
says  that  weather  conditions  which  are  physically 
energizing  and  exhilarating  are  accompanied  by 
an  unusual  number  of  excesses  in  deportment, 
while  the  opposite  meteorological  conditions  show 
the  reverse  effects.  Dr.  G.  Stanley  Hall^  thinks 
that  the  effects  of  climate  have  been  insufficiently 
studied,  and  adds  that  these  effects  are  sometimes 
difficult  to  separate  from  those  of  work  and  rest. 
"Low  temperatures,"  says  he,  "involve  kinetic 
energy  to  maintain  heat,  and  larger  quantities  of 
food  must  be  provided.  Its  indirect  influence  in 
affecting  mode  of  life,  food,  etc.,  must  be  of  itself 
great,  while  the  earlier  age  of  puberty  in  most 
warm  climates  would  suggest  earlier  completion  of 
growth.  No  doubt  there  is  an  optimum  tempera- 
ture most  favorable  to  the  highest  human  develop- 
ment, and  also  a  limit  of  variation  beyond  which 
retardation  is  caused.  The  studies  of  the  effects 
of  temperature  upon  the  growth  of  lower  animal 
forms  are  interesting  here." 


1  Korperlangre  und  Wachstum  der  Volkachalkind«r. 

2  Psychologry  in  the  School  Room. 

3  Psychologry  of  Adolescence,  vol.  1,  p.  33. 


Cosmic  Factors  of  Crime 

MacDonald*  takes  note  of  the  fact  that  animals 
of  the  same  species,  or  related  ones,  are  fiercer  in 
the  torrid  than  in  the  less  warm  regions  of  Amer- 
ica; that  lions  in  the  Atlas  Mountains  are  much 
less  formidable  than  those  in  the  desert;  and  that 
cattle  have  been  known  during  the  warm  season, 
and  especially  at  the  approach  of  a  storm,  to  be 
taken  with  an  attack  of  fury  and  rush  against  per- 
sons and  trees  until  the  storm  bursts  and  the  rains 
calm  them.  Dr.  Buckle  has,  in  his  "History  of 
Civilization,"  shown  with  great  clearness  the  in- 
fluence of  the  cosmic  phenomena  upon  the  races  of 
men.  These  influences  are  obviously  indicated  by 
the  comparatively  low  types  of  civilization  which 
are  usually  found  in  the  more  inhospitable  por- 
tions of  the  globe.  Upon  the  whole  it  would 
seem  that  no  school  of  criminologists  can  afford 
to  ignore  the  important  influences  which  climatic 
variations  exert  upon  social  as  well  as  biological 
conditions. 

The  accompanying  diagrams  and  their  explana- 
tions, illustrating  the  monthly  fluctuations  of 
crime,  are  from  MacDonald.  From  Diagram  A 
it  will  be  seen  that  crime  is  at  a  minimum  in  June, 
there  being  6,490  indictable  offenses.  It  is  at  the 
maximum  in  October  (8,014),  and  decreases  but 

*Man  and  Abnormal  Man. 


Causes  and  Cures  of  Crime 


BOOO 


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t-       I        t       I'       1       ^        I        i 


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Diasrram  A. — Crimes  committed  (all  indictable  offenses). 


Oiasrram  B. — Crimes  of  violence  against  the  person. 


, 

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Diagram  C. — Crimes  aeainst  property  with  violence. 


4    I    I    4    t    I    t   1^   ^   ^    I    <^ 


Diagram  D.— Attempts  at  suicide. 

4 


Cosmic  Factors  of  Crime 

little  in  November,  December  and  January.  While 
the  fluctuations  of  crimes  against  property  deter- 
mine those  of  crime  generally,  crimes  against  the 
person  follow  in  an  opposite  course,  as  Diagram 
B  shows;  that  is,  such  crimes  are  highest  in  the 
spring  and  summer,  while  reaching  their  minimum 
in  the  winter  months.  In  crimes  against  property 
with  violence,  Diagram  C,  the  maximum  is  in  De- 
cember and  the  minimum  in  June,  varying  in- 
versely with  the  length  of  the  day.  Diagram  D 
shows  the  maximum  of  suicidal  attempts  in  hot 
weather. 

Statistics  very  clearly  show  that  crimes  against 
the  person  are  proportionately  most  numerous  in 
warm  climates,  while  in  the  cooler  regions  crimes 
against  property  are  most  frequent.^  In  the 
warmer  climates  of  Italy  and  Spain  we  find  the 
maximum  of  murders  in  Europe,  while  the  cooler 
climes  of  England,  Scotland  and  Holland  supply 
the  fewest  murders  in  proportion  to  population. 
Prof.  Enrico  Ferri  has  demonstrated  that  in 
France  the  greatest  number  of  crimes  against  the 
person  are  committed  in  the  summer  season,  while 
the  maximum  of  crimes  against  property  is  reached 
in  winter.  Discussing  the  influence  of  thermo- 
metric  and  barometric  changes  on  the  quality  of 

■  Lefflngrwell :     Influence  of  Seasons  Upon  Conduct. 

5 


Causes  and  Cures  of  Crime 

human  conduct  Dr.  G.  Frank  Lydston,  in  his  very 
interesting  work  on  "Diseases  of  Society  and  De- 
generacy" (p.  23)  states  that  hot  weather  seems 
to  have  an  effect  chiefly  in  increasing  crimes  of  im- 
pulse, and  that  neuropathic  persons,  especially, 
find  great  difficulty  in  adjusting  themselves  to 
changes  of  climatic  environment.  In  such  persons 
the  mental  equilibrium,  already  unstable,  is  easily 
destroyed,  and  in  this  respect  hot  weather,  making 
the  nerve  centers  hyperesthetic,  acts  much  in  the 
same  way  as  alcohol.  "The  tonic  effect  of  cold 
weather  in  maintaining  the  nervous  and  mental 
equilibrium  of  neuropaths,  and  thus  inhibiting 
crimes  of  impulse,"  says  Dr.  Lydston,  "is  obvious. 
The  physiologic  turmoil  in  the  sexual  system 
ushered  in  by  spring  is  well  known.  Poets  have 
sung  of  it,  and  rapists  have  been  hanged  for  it. 
It  bears  a  relation  not  only  to  sexual  crimes  but  to 
all  crimes  of  impulse,  such  as  murder  and  sui- 
cide." We  know  that  in  the  United  States  crimes 
against  the  person  are  unduly  high  in  southern  lat- 
itudes. It  is  clearly  proven  that  the  maximum  of 
suicides,  murders  and  rapes  is  always  reached  in 
early  summer,  whereas  the  minimum  is  reached  in 
December  or  January.  Therefore  it  appears  that 
Byron  stated  a  scientific  fact,  since  borne  out  by 
statistics,  when  he  said  in  "The  Giaour"  that 
"The  cold  in  clime  are  cold  in  blood." 

6 


Cosmic  Factors  of  Crime 

Dr.  Rink  claims  to  have  discovered  certain 
Eskimo  languages  which  supply  no  word  for 
"quarrel."  Gibbon,  in  Chapter  6s  of  his  history, 
has  observed:  "The  Arctic  tribes,  alone  among 
the  sons  of  men,  are  ignorant  of  war  and  uncon- 
scious of  human  blood;  a  happy  ignorance,  if  rea- 
son and  virtue  were  the  guardians  of  their  peace." 
But  their  pacific  nature  is  not  due  to  their  reason, 
and  their  virtue  is  rather  an  effect  of  the  Arctic 
temperature.  Possibly  the  Laplander  should  not 
more  be  praised  for  his  harmlessness  than 
some  of  the  Italians  should  be  blamed  for  their 
extraordinary  aptitude  in  the  use  of  the  stiletto. 
Both  are  governed,  in  some  measure,  by  cosmical 
influences,  and  while  the  criminal  anthropologist 
may  attribute  this  homicidal  or  non-homicidal 
tendency  to  individual  characteristics-,  we  can- 
not doubt  that  the  individual  nature  is  some- 
what affected  by  climatic  influences  acting  in 
conjunction  with  certain  biological  conditions. 
History  records  the  fact  that  within  three  genera- 
tions the  Vandals  who  settled  in  northern  Africa 
were  transformed  from  a  fierce  and  hardy  sol- 
diery into  a  race  of  luxuriant  weaklings.  But,  for 
all  that,  the  Carthagenians  under  Hannibal  were 
not  an  effeminate  people.  It  must  likewise  be 
borne  in  mind  that  the  same  climate  which  nur- 

7 


Causes  and  Cures  of  Crime 

tured  Cyrus  the  Great  witnessed  the  fall  of  Persia, 
and  that  the  skies  under  which  the  later  Roman 
emperors  basked  in  luxuriant  indolence  were  the 
same  sunny  skies  which  smiled  upon  the  Roman 
legions  when  their  victorious  eagles  awed  the 
world. 

Climatic  conditions  may  operate  through  both 
the  social  and  the  individual  factors  of  crime. 
Thus  a  man  may  endure  in  the  mountains  or  upon 
the  open  plains  a  temperature  of  90"  or  95°  with- 
out serious  danger  to  his  nervous  organism, 
whereas  if  confined  to  the  heart  of  a  city  of  three 
or  four  millions  the  results  of  the  same  tempera- 
ture upon  the  same  nervous  and  physical  organ- 
ism may  become  serious.  This  is  partly  illus- 
trated by  the  fact  that,  although  the  maximum 
number  of  suicides  is  reached  in  the  summer  sea- 
son, yet  the  number  is  greater  in  the  large  centers 
of  population  than  it  is  in  the  rural  districts.  For 
example,  in  New  York  City  the  suicides  are  about 
150  to  the  million  of  population,  while  in  the  rural 
districts  the  number  is  less  than  100  to  the  mil- 
lion. It  should  not  be  forgotten,  however,  that  in 
the  centers  of  population  other  factors  aside  from 
those  of  climate  and  temperature  are  operative 
in  a  high  degree. 

It  is  noticeable  that  our  great  "waves  of  crime" 
8 


Cosmic  Factors  of  Crime 

usually  occur  in  seasons  of  extraordinary  heat  and 
humidity,  and  that  the  center  of  the  "wave"  is 
also  the  great  center  of  population,  where  social 
and  individual  factors  of  crime  converge  with 
greatest  intensity  upon  the  given  point.  The  nerve- 
tension  is  always  more  extreme  in  the  large  cities 
and  there,  also,  are  the  social  vices  most  numer- 
ous. Precipitate  upon  these  conditions  a  condi- 
tion of  unusual  heat,  and  an  epidemic  of  crimes 
against  the  person  may  be  expected  to  follow. 

In  the  United  States  the  "mad  dog  season"  and 
the  "crime  wave"  usually  occur  simultaneously, 
but  dogs  do  not  always  go  mad  if  given  relief  at 
the  proper  time,  nor  will  normal  men  commit 
crimes  of  violence  in  normal  circumstances  and 
under  normal  conditions.  When  Boerhave  died, 
the  great  physician  left  behind  him  this  laconic  bit 
of  advice  to  seekers  after  health:  "Keep  your 
head  cool  and  your  feet  warm."  From  the  view- 
point of  criminal  anthropology  the  temperature 
of  the  feet  may  be  regarded  as  relatively  unim- 
portant, to  be  sure;  but,  a  "cool  head"  is  highly 
desirable,  not  only  in  the  figurative  sense  but  in 
the  sense  of  physical  actuality. 

The  natural  relation  of  heat  to  crimes  of  vio- 
lence is  more  readily  grasped  than  is  the  relation 
of  cold  to  crimes  against  property.   There  would 

9 


Causes  and  Cures  of  Crime 

seem  to  be  no  apparent  reason  why  man  should 
be  more  dishonest  in  cold  than  in  hot  weather,  or 
in  cool  than  in  warm  regions,  but  nevertheless  the 
criminal  records  seem  to  indicate  this  to  be  the 
f act.^  This  may  be  due  to  the  fact  that  the  means 
of  livelihood  are  more  readily  obtainable  in  warm 
weather  and  in  warm  climates;  and  the  earning 
capacity  is  greatly  curtailed,  among  the  majority 
of  men,  in  the  cooler  seasons  and  in  the  colder  re- 
gions of  the  globe.  The  overwhelming  majority 
of  thefts  are  committed  by  men  of  unsettled  pur- 
suits and  no  established  occupation;  and  it  is  evi- 
dent that  they  who,  from  whatever  cause,  cannot 
produce  for  themselves,  will  most  naturally  at- 
tempt to  take  the  produce  of  others;  just  as  the 
inhabitants  of  the  barren  highlands  of  Scotland 
for  so  many  centuries  lived  by  theft  because  there 
was  no  other  way  for  them  to  live,  and  just  as 
that  other  northern  race,  the  Vikings,  for  the 
same  reasons  lived  by  pillage  upon  their  neighbors 
of  the  South. 

Mountain  wilds  and  Arcadian  fastnesses  which 
are  supposed  to  inspire  the  highest  reach  of  song, 
are  no  longer  known  merely  as  the  harmless  and 
idyllic  rendezvous  of  poets  and  the  haunt  of 
dreams;  for  they  are  the  haunts  of  brigandage  as 

•  Lombroso :     Crime,  Its  Causes  and  Remedies,  pt.  1,  ch.   1. 
lO 


Cosmic  Factors  of  Crime 

well.  Lombroso"^  noted  that  during  a  period  of 
fifty-four  years  the  minimum,  20  per  cent,  of 
crimes  against  the  person  occurred  in  the  level 
country;  that  33  percentoccurred  in  the  hilly  coun- 
try, and  that  a  maximum  occurred  in  mountainous 
districts.  This  he  ascribed  to  the  active  and  hardy 
nature  of  mountaineers,  and  to  the  facility  af- 
forded for  ambuscades.  But  the  turbulency  of 
the  mountainous  districts  of  Kentucky  and  Tennes- 
see will  not  be  ascribed  solely  to  the  active  and 
hardy  nature  of  the  population.  I  have  no  doubt 
that  the  condition  is  also  partly  due  to  the  facili- 
ties afforded  for  escape.  For  this,  among  other 
reasons,  outlawry  is  not  indigenous  to  the  open 
plains  and  is  less  difficult  to  irradicate  there  than 
in  mountainous  regions. 

Being  unable  to  accept  the  doctrine  of  economic 
determinism,  the  author  must  deny  that  the  human 
being  is  conditioned  solely  by  material  influences, 
cosmic  or  otherwise;  although,  in  the  light  of  the 
investigations  made  by  scientific  minds  of  the 
highest  order,  it  would  be  unwise  as  well  as  un- 
safe to  discard  those  influences  from  any  rational 
inquiry  into  the  causes  of  crime.  In  all  such  in- 
quiries, however,  care  should  be  used  to  avoid 
the  recognition  of  isolated  and  merely  coincidental 

">  Crime  Politique,  ch.  4. 

II 


Causes  and  Cures  of  Crime 

phenomena  as  proof  of  the  ultimate  fact.  Man 
cannot  be  said  to  exist  as  a  cosmic  organism  alone, 
unaffected  by  social  influences  or  ethnic  peculiari- 
ties which,  in  some  measure,  govern  his  moral 
conduct.  But,  knowing  how  and  when  and  ap- 
proximately the  extent  to  which  cosmic  influences 
may  be  expected  to  operate  in  the  formation  of 
human  character,  we  may  be  thereby  enabled  to 
more  effectively  supply  the  desiderata  peculiar  to 
the  environment. 

Weather,  the  soil,  the  climate  of  a  country,  as 
well  as  its  topography,  exert  far  too  great  an  in- 
fluence upon  individual  and  racial  character  to  be 
ignored  in  any  successful  attempt  at  social  analy- 
sis, but  they  are  not  the  dominating  influence  in 
the  development  of  either  individual  or  national 
character.  If  such  influences  were  paramount 
then  we  should  expect  to  find  a  persistency  of  crim- 
inal type  prevailing  with  a  uniformity  affected 
solely  by  the  variations  of  cosmical  phenomena, 
and  this  is  a  proposition  which,  manifestly,  can- 
not be  apodeictically  asserted  in  the  present  state 
of  scientific  investigation.  There  is  one  civiliza- 
tion at  the  site  of  Babylon  and  another  at  Berlin, 
and  human  nature  in  its  essential  elements  has 
changed  but  little,  if  any,  since  Hammurabi  wrote 
his  code;  but,  although  the  climate    has    altered 

12 


Cosmic  Factors  of  Crime 

little,  the  vices  and  virtues  which  in  those  days 
pervaded  the  valley  of  the  Tigris  and  Euphrates 
were  not  precisely  what  they  are  today.  Germany 
has  passed  from  savagery  to  civilization  of  the 
highest  type  within  the  period  of  authentic  his- 
tory, but  there  has  been  no  marked  change  of  cli- 
mate. To  the  student  of  history,  many  similar 
incidents  will  readily  occur.  But  such  conditions, 
although  they  may  tend  to  minimize,  do  not  elim- 
inate the  theory  of  cosmical  factors  in  crime-caus- 
ation and  in  racial  growth. 


13 


CHAPTER  11. 

Social  Factors  of  Crime. 

The  environment  of  the  individual  is  made  up 
of  the  cosmical  and  social  conditions  which  sur- 
round him.  Criminologists  have  therefore,  for 
convenience  in  the  investigation  and  treatment  of 
the  subject,  grouped  in  three  principal  categories 
the  causes  which  operate  to  induce  crime,  viz. :  the 
cosmic,  social  and  the  individual  causes ;  of  which 
the  social  causes  are  by  far  the  most  numerous, 
comprising,  as  they  undoubtedly  do,  many  of  the 
primal  inducements  which  lie  back  of  very  many 
of  those  factors  which  appear  to  dwell  within  the 
criminal's  own  individuality.  The  French  school 
of  criminology  teach  that  most  crime  arises  from 
diseased  social  conditions  and  that,  consequently, 
the  remedy  is  to  be  sought  in  better  social  condi- 
tions. No  doubt  much  of  the  degeneracy  which 
afflicts  civilization  does  originate  in  the  maladjust- 

14 


09     t> 

3     M 


3 
P  > 


3i  O 

3  > 

n>  M 

7  O 

30 

3"  a 

&  jd 

fD  M 

3  ^ 


Social  Factors  of  Crime. 

ments  of  society;  but,  as  Ferri^  observes,  social 
conditions  alone  do  not  explain  crime.  In  their 
"Introduction  to  the  Study  of  Society,"  Small  and 
Vincent  observe  (p.  270)  :  "While  the  truth  that 
has  just  been  stated — namely,  that  diseased  and 
abnormal  individuals  produce  pathological  social 
conditions — is  of  fundamental  significance,  an- 
other important  truth  must  not  be  overlooked.  It 
is  that  abnormal  social  arrangements  and  func- 
tions react  upon  individuals,  offering  opportuni- 
ties for  personal  degeneration  and  unsocial  con- 
duct if  not  actually  making  them  necessary.  This 
reciprocal  interrelation  between  men  and  institu- 
tions must  be  kept  in  view  by  all  rational  reform- 
ers. Insistence  upon  only  one-half  of  this  two- 
fold truth  is  a  source  of  much  confused  thought 
and  fruitless  effort.  As  in  the  case  of  all  social 
growth  there  is  constant  modification  of  structure 
in  adjustment  to  new  or  changed  functions,  so 
pathological  conditions  are  slowly  eliminated  as 
a  result  of  improved  individual  and  collective 
thought,  feeling,  and  conduct." 

The  influences  of  social  conditions  upon  the 
life  of  the  individual  are  so  various  and  complex 
that  an  exact  analysis  of  their  precise  nature  and 
extent  is  impossible;  but,  for  the  purposes  of  this 

» Grim.  Soc  p.  55. 

15 


Causes  and  Cures  of  Crime 

inquiry,  those  conditions  may  be  divided  into 
three  general  classifications,  namely:  political,  eco- 
nomic and  moral. 

Most  obvious  among  crime-breeding  political 
conditions  is  that  state  of  political  apathy  or  civic 
stagnation  wherein  multitudes  of  the  better  classes 
become  neglectful  of  their  civic  obligations.  When 
right-minded  persons  cease  to  exert  their  influ- 
ence in  the  public  life  of  the  community  the  worst 
elements  of  citizenship  rapidly  gain  control,  and 
the  public  offices  are  prostituted  to  the  purposes 
of  personal  aggrandizement.  It  is  then  that  men 
lose  respect  for  their  public  officials,  and  disre- 
spect of  the  official  functions  and  the  laws  which 
they  represent  is  both  an  early  and  an  inevitable 
result.  These  conditions,  when  allowed  to  remain 
unchecked,  ultimately  spread  through  all  ranks  of 
society,  until  the  community  is  honey-combed  with 
the  corruption  that  flowers  in  its  public  repre- 
sentatives. Such  a  state  of  society  not  only  offers 
no  incentive  to  honesty,  but  it  places  a  positive 
premium  upon  vice. 

Out  of  such  unclean  political  conditions  others 
flow  as  from  a  fountain.  Opinions  which  en- 
gender a  contempt  for  the  rights  of  property 
naturally  arise.  The  spectacle  afforded  by  men 
grown  rich  through  privileges  filched    from   the 

i6 


Social  Factors  of  Crime. 

community  does  not  inspire  a  lofty  regard  for  the 
paramount  sacredness  of  property  rights  in  gen- 
eral, and  those  who  do  not  think  correctly  become 
easy  converts  to  the  doctrine  of  Rob  Roy,  that 

"They  should  take  who  have  the  power 
And  they  should  keep  who  can." 

Improper  administration  of  the  criminal  laws 
by  courts  and  prosecuting  officials  is  often  a  cause 
of  crime.  There  are  two  classes  of  prosecuting 
officers  who  are  more  dangerous  to  society  than 
any  of  the  so-called  professional  criminals.  One 
class  is  composed  of  those  who,  from  corruption 
or  inefficiency,  are  lax  in  the  performance  of  their 
duties.  The  other  class  is  made  up  of  those  who 
are  bent  upon  "making  a  record."  Such  men  drive 
many  to  lives  of  crime  by  the  severity  of  punish- 
ment imposed  for  trivial  and  first  offenses.  Many 
a  young  man  has  been  ruined  and  made  an  enemy 
to  society,  when  he  could  have  been  saved  by  a 
little  judicious  leniency  exercised  in  the  right  way 
and  at  the  right  time.  One  notorious  criminal  told 
me  in  his  death-cell  that  this  was  especially  true  of 
his  own  case,  and  that  he  knew  it  to  be  true  of 
many  of  his  associates  in  crime.  So  earnest  was 
he  in  this  belief  that  he  asked  me  to  remember  it 
as  the  declaration  of  a  dying  man,  and  to  transmit 
it  to  others  who  may  be  interested  in  the  adminis- 

17 


Causes  and  Cures  of  Crime 

tration  of  the  criminal  laws.  A  few  hours  later 
this  man  died  upon  the  gallows — guilty  of  the 
crime  for  which  he  died,  but  none  the  less  the  vic- 
tim of  another's  mistake. 

Closely  allied  with  the  prosecutor's  office  Is  the 
police  department.  I  have  been  told  by  more 
than  one  criminal  of  national  notoriety  and  expe- 
rience that  there  is,  in  many  great  cities  of  the 
United  States,  a  limited  partnership  between  cer- 
tain of  the  criminal  classes  and  the  police  depart- 
ments. Police  investigations  in  a  number  of  cities 
have  at  various  times  corroborated  these  state- 
ments. The  whole  police  department,  it  is  true, 
is  seldom  or  never  so  involved,  and  frequently  the 
heads  of  the  departments  have  no  knowledge  of 
the  true  relations  subsisting  between  some  of 
their  subordinates  and  the  criminal  classes.  But 
this  relation  is  not  always  that  of  bribe-giver  and 
bribe-taker.  It  often  happens  that  the  officer  on 
the  force  simply  wants  to  "make  good."  To  do 
so  he  must  needs  procure  information  with  regard 
to  certain  criminal  operations.  There  are  always 
criminals  who  can  give  a  clew  to  an  officer.  But 
they  will  not  do  so  unless  given  to  understand 
that  in  the  ordinary  course  of  events  they  will  not 
be  themselves  molested.  Thus  arises  a  secret  un- 
derstanding between  the  crook  and  the  police.  The 

i8 


Social  Factors  of  Crime. 

crook  must  do  detective  work  which  he  alone  can 
do,  as  the  price  of  his  own  immunity.  He  has  no 
regard  for  the  law,  and  becomes  a  worse  citizen 
than  before,  while  the  other  crook,  who  is  denied 
similar  immunity  and  protection,  feels  a  kind  of 
double  injury  and  becomes  more  of  an  enemy  to 
society  than  he  was  before.  The  police  officer,  in 
the  course  of  time,  becomes  thoroughly  demoral- 
ized, and  in  the  outcome  the  state,  the  officer  and 
the  criminal  all  suffer  from  this  truce  with  crime. 
The  first  case  of  the  so-called  "white  slavery" 
to  reach  the  public  attention  in  the  United  States 
was  due  to  a  connivance  of  police  officers  in  the 
city  of  St.  Louis,  and  subsequent  investigations 
have  shown  similar  conditions  to  exist  elsewhere. 
The  first  case  was  developed  in  1902  by  Joseph 
W.  Folk,  then  Circuit  Attorney  of  St.  Louis,  and 
afterwards  elected  Governor  of  the  State  of  Mis- 
souri. Folk  at  that  time  discovered  houses  in  St. 
Louis  into  which  many  young  girls  had  been  de- 
coyed by  promises  of  employment.  In  these 
houses  the  male  patron  purchased  brass  checks 
of  the  cashier,  and  these  checks  were  received  by 
the  girls,  who  in  turn  delivered  them  to  their  em- 
ployer each  morning  and  received  "credit"  on  the 
books.  These  girls  never  saw  any  money  at  all. 
Occasionally  one  made  her  escape,  but  the  police 

19 


Causes  and  Cures  of  Crime 

were  always  promptly  notified  and  she  was  as 
promptly  returned  to  her  keeper.  When  the  re- 
sponsibility was  properly  located  this  revolting 
condition  was  soon  destroyed.  Abuses  of  this 
kind  can  never  exist  without  police  protection. 

"The  law's  delay"  is  not  so  great  a  factor  in 
the  encouragement  of  crime  as  is  commonly  sup- 
posed. Frequently  the  delay  of  trials  and  the  sus- 
pension of  sentences  but  contribute  to  the  terrors 
of  the  law.  It  is  sometimes  true  that  the  longer 
an  indictment  is  held  over  the  head  of  an  accused 
person,  the  more  harrowing  the  ordeal  becomes 
to  him,  whereas  the  immediate  trial  and  deter- 
mination of  a  case  may  result  in  the  infliction  of  a 
penalty  before  either  the  criminal  or  the  public 
have  had  time  to  realize  it.  But,  aside  from  all 
this,  it  conclusively  appears  that  the  certainty  of 
the  punishment  is  the  only  thing  about  punishment 
that  is  of  any  avail  at  all.  The  delay  of  punish- 
ment amounts  to  little,  provided  it  be  certain;  and 
undue  severity,  where  it  fails  to  provoke  popular 
discontent,  is  at  least  certain  to  confirm  any  anti- 
social tendency  to  which  the  criminal  may  have 
been  previously  disposed,  or  else  breed  new  hatred 
of  the  laws.  As  Seneca^  says:  "The  time  that 
precedes  punishment  is  the  severest  part  of  it." 


»De  Beneficiis.  II,  5. 

20 


Social  Factors  of  Crime. 

Back  of  the  question  of  law  enforcement  and 
antecedent  thereto  is  the  question  of  law-making. 
In  some  parts  of  the  United  States  the  citizen  is 
governed  by  more  than  sixteen  thousand  separate 
and  distinct  statutes,  supplemented,  modified  and 
construed  by  a  myriad  of  court  decisions — and 
the  citizen  is  presumed  to  know  them  all.  It  is 
doubtful  if  even  Rome,  before  the  time  of  Justin- 
ian, was  more  plagued  and  vexed  with  laws.  "Cor- 
ruption abounding  in  the  commonwealth,  the  com- 
monwealth abounded  in  laws,"  says  Tacitus.^  If 
the  people  of  the  United  States  have  suffered  a 
greater  degree  of  failure  in  dealing  with  crime 
than  have  other  peoples  upon  the  same  plane  of 
civilization,  a  considerable  measure  of  that  fail- 
ure must  be  ascribed  to  a  disposition  to  invoke 
the  legislative  panacea  upon  all  occasions.  Almost 
every  public  and  private  relation  has  become  the 
subject  of  legislation.  A  body  of  law  so  volum- 
inous and  complex  as  to  be  wholly  beyond  the 
knowledge  of  the  average  man  must  inevitably 
lose  the  sympathy  and  respect  of  the  public,  and 
law  enforcement  will  become  more  difficult  with 
the  increase  in  the  number  and  complexity  of  the 
statutes.  To  have  all  grievances  met  by  law  is  as 
bad  in  effect  as  to  have  them  all  to  be  adjusted  by 

•An.,  Bk.  Ill,  p.  160. 

21 


Causes  and  Cures  of  Crime 

non-interference.  The  one  is  the  extreme  of  so- 
cialism; the  other,  the  extreme  of  liberalism.  In- 
telligent legislation,  moreover,  cannot  be  formu- 
lated without  regard  to  the  needs  and  wishes  of 
the  people  as  well  as  to  abstract  principles.  Con- 
stant says:  "In  order  that  the  institutions  of  a 
people  may  be  stable,  they  must  keep  themselves 
to  the  level  of  the  people's  ideas."  Solon  did  not 
claim  for  his  constitution  that  it  was  the  best  that 
human  wisdom  could  devise;  but,  he  said  that  it 
was  the  best  that  his  people  would  accept.  When 
Colbert,  the  great  minister  of  Louis  XIV,  sum- 
moned the  merchants  and  manufacturers  of 
France  about  him  and  asked  them  what  should  be 
done  by  the  government  to  aid  commerce,  they  re- 
plied: "Let  it  alone;"  and  Benjamin  Franklin  de- 
clared that  to  be  one  of  the  wisest  political  axioms 
ever  uttered  by  man.  Where  there  is  too  much 
law  making,  there  will  also  be  much  law  breaking, 
for  the  average  man  can  never  be  legislated  into 
a  state  of  prosperity,  temporal  or  spiritual,  nor 
will  he  willingly  yield  obedience  to  laws  for  which 
he  cares  nothing  and  which  he  cannot  understand. 
While  upon  this  subject  it  may  be  worthy  of 
note  that  Lombroso*  and  Brunialti'*    have    both 


*  Crime,  etc.,  p.  329. 
■  La  Legge  e  la  Liberta. 


22 


Social  Factors  of  Crime. 

recognized  the  efficacy  of  the  referendum  as  the 
means  of  acquainting  the  people  with  affairs  of 
government,  the  former  stating:  "It  may  be  con- 
sidered as  the  most  powerful  instrument  for  the 
education  of  a  free  people,  because  it  forces  them 
to  study  the  laws  submitted  to  them,  and,  by  mak- 
ing them  feel  their  whole  responsibility,  gives  them 
a  consciousness  of  the  part  they  have  in  the  polit- 
ical life  of  the  country." 

Exhibitions  of  public  cruelty  will  engender  in 
the  community  a  callousness  toward  human  suffer- 
ing and  certainly  tend  to  destroy  in  the  public 
mind  the  feeling  that  a  human  life  is  a  sacred 
thing.  We  look  with  less  seriousness  upon  the 
taking  of  life  when  we  become  accustomed  to  see- 
ing human  beings  publicly  put  to  death.  Thus,  in 
the  days  of  the  duel,  men  did  not  hesitate  to  give 
their  own  lives,  or  take  the  lives  of  their  fellow 
creatures,  for  so  trifling  a  matter  as  the  snapping 
of  a  finger  in  one's  face.  It  has  been  demonstrated 
in  our  day  that  in  those  States  where  are  most 
legal  executions  in  proportion  to  population  there 
are  most  lynchings,  and  in  the  States  where  the 
greatest  number  of  legal  executions  and  lynchings 
occur,  there,  also,  occur  the  greatest  number  of 
the  so-called  capital  crimes. 

War,  revolution,  riot,  or  any  condition  which 

23 


Causes  and  Cures  of  Crime 

suspends  the  civil  relation  and  tends  to  loose  the 
social  bond,  will  always  tend  to  convert  men  to 
savagery.  The  fiendish  acts  of  cruelty  committed 
upon  women  and  children,  and  even  upon  dumb 
animals,  in  the  border  States  during  the  civil  war 
in  the  United  States,  can  scarcely  be  believed, 
even  when  detailed  by  creditable  eye-witnesses.  A 
captain  in  the  volunteer  army  during  our  late  war 
with  Spain  told  me  that  twenty-one  of  his  men, 
who  had  borne  excellent  characters  at  home,  com- 
mitted a  most  horrible  assault  upon  a  pure  coun- 
try girl.  Quite  a  number  of  the  soldiers  of  that 
war,  who  were  not  able  to  quickly  adjust  them- 
selves to  normal  conditions  after  their  discharge, 
have  since  served  sentences  in  various  peniten- 
tiaries. I  have  investigated  a  number  of  these 
cases,  and  in  each  instance  have  found  the  criminal 
nature  due  chiefly  to  the  military  service  men- 
tioned. The  same  rapid  moral  deterioration  is 
noticeable  in  every  great  social  disturbance,  numer- 
ous instances  of  which  are  afforded  by  our  great 
labor  difficulties. 

Aubry®  declares  that  war  is  a  neurosis,  a  con- 
tagious, homicidal  insanity.  Lombroso'^  notes 
that  war  always  increases  the  number  of  crimes. 


■  La  Contagion  du  Meutre. 
^  Crime,  etc.,  p.  56. 


24 


Social  Factors  of  Crime. 

According  to  Lydston  military  service  renders  a 
great  many  unfit  for  honest  industry,  for  one  or 
more  of  the  following  reasons :  ( i )  impaired 
constitution  from  legitimate  diseases  incidental  to 
army  life;  (2)  crippling  from  venereal  diseases 
prevalent  in  armies;  (3)  viciousness  and  deprav- 
ity arising  from  the  fact  that  men  congregated  to- 
gether tend  to  sink  to  the  level  of  the  lowest  rather 
than  rise  to  that  of  the  highest;  (4)  crippling 
from  wounds;  (5)  breaking  up  all  habits  of  in- 
dustry; (6)  mental  inertia  from  lack  of  brain 
work  in  the  service;  (7)  being  cared  for  by  army 
machinery  to  the  exclusion  of  the  principle  of  self 
reliance;  (8)  alcoholism  contracted  in  the  army; 
(9)  loss  of  wage  earning  positions  that  cannot  be 
regained  on  quitting  the  service.  The  warlike 
spirit  is  sometimes  called  the  aggressive  principle 
in  man.  So  it  is.  The  animus  furandi  is  also  an 
aggressive  principle,  and,  as  lawyers  know,  no 
theft  is  complete  without  it.  Why  should  we  ad- 
mire that  in  man  which  leads  him  to  fight,  and  de- 
nounce that  which  impels  him  to  steal?  In  the  one 
case  he  makes  an  assault  upon  his  neighbor's  body; 
in  the  other,  upon  his  property.  As  to  this,  Sparta 
showed  a  degree  of  consistency  which  modern 
humbugs  would  do  well  to  imitate.  Of  course, 
war  is  an  aggressive  principle,  and  that  is  an  ad- 

25 


Causes  and  Cures  of  Crime 

ditional  reason  why  society  should  guard  against 
it.  If  it  were  not  aggressive  it  would  be  innocu- 
ous. The  life  of  the  soldier  is  a  strenuous  one, 
to  be  sure;  and  so  is  that  of  the  highwayman,  the 
burglar  and  the  pirate.  They  are  all  active  men. 
Indeed,  as  Dr.  MacDonald  says,  there  is  philo- 
logical evidence  to  show  that  in  Sanskrit  the  word 
for  crime  is  the  word  for  action.  But  this  active 
principle  asserts  itself  in  deeds  of  rapine  and  vio- 
lence only  among  savages.  Civilized  man  has 
outgrown  it.  Herbert  Spencer  shows  that  the 
warlike  peoples  are  the  most  vicious.  The  martial 
spirit  is  the  worst  feature  of  human  nature,  be- 
cause the  most  brutish.  Martial  law  is  no  law  at 
all,  because  the  civil  relations  are  suspended,  the 
bands  of  society  are  dissolved,  the  social  contract 
is  nullified,  the  military  arm  is  paramount,  brute 
force  reigns  supreme  and  civilization  halts.  There 
is,  strictly  speaking,  nothing  good  in  war.  As 
Shakespeare  said  in  Henry  V.,  "There  are  few  die 
well  that  die  in  battle."  Benjamin  Franklin  was 
literally  correct  when  he  wrote:*  "There  never 
was  a  good  war  or  a  bad  peace."  All  war  is  hom- 
icide, robbery  and  arson,  and  is  morally  excusable, 
if  at  all,  only  upon  the  part  of  those  who  wage  it 
in  self  defense.    It  is  significant  that  all  the  great 


•Letter  to  Quincy,  Sept  11,  1773. 
26 


Social  Factors  of  Crime. 

atavisms  of  society,  both  in  Europe  and  in  Asia, 
have  been  immediately  preceded  by  wars  of  con- 
quest, in  ancient  as  well  as  in  mediaeval  times. 
The  so-called  right  of  conquest  is,  as  stated  by 
Montesquieu,  but  "An  unhappy  power  which 
leaves  the  conqueror  under  a  heavy  obligation  to 
repair  the  injuries  done  to  humanity."  One  may 
readily  understand  why  a  statesman  with  the  ca- 
pacity of  William  E.  Gladstone  viewed  with  ap- 
prehension the  growth  of  "that  terrible  military 
spirit."» 

Many,  if  not  all,  of  the  political  conditions 
above  discussed,  find  their  ultimate  origin  in  eco- 
nomic conditions. 

Among  economic  conditions  having  a  bearing 
upon  crime,  the  relative  influences  of  city  and 
rural  life  upon  the  individual  character  have  af- 
forded a  subject  for  profound  consideration  by 
many  scientific  minds.  Mr.  H.  M.  Bois,  in  his 
book  "Prisoners  and  Paupers,"  concludes  that 
ninety  per  cent  of  our  criminals  come  from  the 
cities.  Levasseur  says  that  in  France  the  cities 
produce  twice  as  many  criminals  as  the  country. 
Mr.  W.  D.  Morrison  is  authority  for  the  state- 
ment that  London  furnishes  one-third  of  the  in- 
dictable offenses  of  England  and   Wales   though 

•  Tollemache  :     Conversations  With  Gladstone. 
27 


Causes  and  Cures  of  Crime 

supplying  less  than  one-fifth  of  the  population. 
"On  the  whole,"  says  Prof.  Gabriel  Tarde,  the 
distinguished  French  penologist,  "the  prolonged 
effect  of  large  cities  upon  criminality  is  manifested, 
it  seems  to  us,  in  the  slow  substitution,  not  exactly 
of  guile  for  violence,  but  of  greedy,  crafty,  and 
voluptuous  violence  for  vindictive  and  brutal  vio- 
lence. Through  them,  through  the  fever  of  pleas- 
ures which  they  stimulate,  every  intense  civiliza- 
tion, unless  care  be  taken,  will  inevitably  run  to 
a  conflict  of  appetites,  mortal  enemies  of  one  an- 
other."^^  It  is  doubtless  true  that  urban  life  is 
more  conducive  to  crime  than  is  rural  life ;  I  have 
found  it  to  be  so  in  Missouri;  but  I  am  by  no 
means  convinced  that  the  difference  in  criminality 
is  as  great  as  is  commonly  stated.  Criminal  sta- 
tistics are  usually  made  up  from  convictions,  and 
there  are  two  very  good  reasons  why  convictions, 
regardless  of  the  percentage  of  criminality  in  the 
population,  are  more  numerous  in  the  city  than  in 
the  country.  The  first  reason  is  to  be  found  in 
the  efficiency  of  the  police  departments  and  de- 
tective forces  of  the  great  cities,  and  the  almost 
total  absence  of  such  facilities  in  many  of  the  rural 
districts.  The  second  reason  lies  in  the  fact  that 
in  a  great  many  of  the  rural  districts  the  prose- 

">  Penal  Philosophy,  p.  359. 

28 


Social  Factors  of  Crime. 

cuting  officer  is  merely  a  beginner  in  the  law, 
whereas  in  the  large  cities  he  is  usually  one  of  the 
most  capable  members  of  the  bar.  I  speak,  of 
course,  with  especial  reference  to  the  United 
States,  having  no  personal  knowledge  of  the  con- 
ditions actually  existing  in  foreign  countries. 

Another  fact  that  swells  the  criminal  statistics 
of  the  great  cities  is  this :  In  the  great  centers  of 
population  it  is  always  comparatively  easy  to 
"make  a  case"  against  a  friendless  individual, 
whether  he  be  guilty  or  not,  and  a  man  who  has 
been  convicted  once  is  very  likely  to  be  convicted 
again,  on  account  of  his  "police  record." 

But,  none  the  less,  life  in  a  great  city  does  afford 
many  inducements  to  crime  which  are  unknown 
in  the  rural  districts.  Of  such  are  the  immoral 
theatres,  low  saloons,  gambling  dives,  houses  of 
ill-fame,  publication  in  the  daily  press  of  the 
minute  details  of  crimes  and  criminal  trials,  the 
facilities  afforded  for  forming  evil  associations, 
and  other  like  factors  of  crime.  In  great  centers 
of  population,  where  newspapers  of  large  circu- 
lation are  numerous,  the  suggestive  power  of  the 
press  can  hardly  be  over-estimated.  This  is  espe- 
cially true  with  reference  to  the  minds  of  neuro- 
pathic persons  and  people  in  the  adolescent  stage. 
I  knew  one  case  in  which  it  clearly  appeared  that 

29 


Causes  and  Cures  of  Crime 

a  woman's  character  was  destroyed  as  a  direct  ef- 
fect of  reading  the  details  of  the  trial  of  Harry  K. 
Thaw  in  New  York.  MacDonald^^  says:  "The 
publication  in  the  newspapers  of  criminal  de- 
tails and  photographs  is  a  positive  evil  to 
society  on  account  of  the  law  of  imita- 
tion; and  in  addition  it  makes  the  criminal 
proud  of  his  record,  and  develops  the  morbid  curi- 
osity of  the  people,  and  it  is  especially  the  men- 
tally and  morally  weak  who  are  affected."  Lom- 
broso^-  observes  that  "Civilization  by  favoring 
the  creation  and  dissemination  of  newspapers, 
which  are  always  a  chronicle  of  vices  and  crimes, 
and  often  are  nothing  else,  has  furnished  a  new 
cause  inciting  criminals  to  emulation  and  imita- 
tion." Aubry^^  comments  upon  the  effects  which 
criminal  details  produce  upon  those  whose  ner- 
vous systems  are  unstable.  "They  may  naturally 
have  no  tendency  to  crime  at  all,"  says  he,  "but 
continual  reading  about  it  may  easily  excite  them 
and  prove  a  dangerous  incentive  to  many  bad 
deeds  which  would  otherwise  have  been  unthought 
of.  It  is  most  desirable  that  the  details  of  crim- 
inal reports  should  be  judiciously  cut  down  before 

"  Criminology,  p.  272. 
12  Crime,  etc.,  p.  54. 

1'  Transactions  Congrress  of  Criminal    Anthropology,    Geneva, 
1902. 

30 


Social  Factors  of  Crime. 

publication.  A  woman  of  Geneva  killed  her  four 
children,  as  she  said,  'as  a  woman  did  which  was 
in  the  newspapers.'  A  lad  of  fifteen  stole  from  a 
patron;  when  the  money  was  spent  he  stabbed  a 
child  in  the  abdomen  and  afterwards  cut  its  throat, 
saying,  'I  have  often  read  novels  and  in  one  of 
them  I  found  a  description  of  a  scene  similar  to 
this  which  I  have  executed.'  "  And  then  Aubry 
continues  in  almost  the  exact  language  of  Mac- 
Donald:  "The  publication  in  the  newspapers  of 
criminal  details  and  photographs  is  an  effective 
evil  to  society,  on  account  of  the  law  of  imitation. 
In  addition,  it  makes  the  criminal  proud  of  his 
record  and  excites  the  morbid  curiosity  of  the 
people,  affecting  especially  the  mentality  of  the 
weak."  In  this  connection  the  psychology  of  man 
in  the  mass  forms  an  interesting  study.  The 
morals  of  a  mob  are  lower  than  the  morals  of  the 
average  individual  constituting  the  mob.^*  As  M. 
Tarde  said  at  the  congress  of  anthropology  in 
1892,  "The  crowd  is  never  frontal  and  rarely  oc- 
cipital; it  is  mainly  spinal.  It  always  contains 
something  childish,  puerile,  quite  feminine."  Ac- 
cording to  Hans  Gross, ^^  Tarde,  Garnier  and 
Diekterew,  all  showed  at  the  same  congress  how 


"  Fournlal :    Psychologle  des  Foules. 
•*  Criminal  Psychology,  p.  416. 

31 


Causes  and  Cures  of  Crime 

frequently  the  mob  is  excited  to  all  possible  ex- 
cesses by  lunatics  and  drunkards.  Tarde  ascribed 
these  phenomena  to  his  "law  of  imitation."  This 
psychic  contagion  is  also  recognized  by  Weber 
and  by  Baer.^®  The  moral  resisting  power  of  the 
crowd  is,  in  some  circumstances,  less  than  that  of 
the  individual.  Bertillon  says:  "There  is  a  kind 
of  violent  and  morbid  tendency  that  moves  us  to 
reproduce  the  feelings  and  movements  which  we 
see  around  us.  Many  causes  contribute  to  this: 
youth,  femininity,  and  above  all  (as  Sarcey  says) 
the  mutual  contact  of  sensient  persons,  which 
gives  added  strength  to  the  natural  impressions 
that  each  one  has  by  himself.  The  air  is  filled 
with  the  dominant  opinion  and  transmits  it  like 
a  contagion."  Operating,  as  it  does,  directly  upon 
these  crowded  populations  the  newspaper's  power 
for  good  or  evil  is  greater  by  far  than  many  pub- 
lishers suppose,  and  large  communities  expe- 
rience the  effects  of  this  influence  without  realiz- 
ing the  extent  of  its  power.  What  is  here  said  of 
newspapers  is  likewise  true  of  the  motion-picture 
and  the  drama. 

It  has  been  a  matter  of  debate  among  criminol- 
ogists as  to  whether  there  is  the  same  degree  of 
culpability  attaching  to  mob  offenders  as  to  indi- 

"  Die  Gefangnlsse. 

32 


Social  Factors  of  Crime. 

vidual  offenders.  Sclpio  Sighele,  in  his  book  on 
"Collective  Crimes"  (by  which  he  means  mob 
crimes),  contends  that  the  individual  who  acts  as 
part  of  a  mob  should  not  be  held  to  the  same  de- 
gree of  accountability  as  when  acting  alone.  I  be- 
lieve Sighele  to  be  correct  in  his  contention  that 
the  person  who  commits  crime  under  the  influence 
of  the  exciting  causes  of  mob  action  should  be 
treated  more  leniently,  because  the  actors  are  in- 
volved in  a  complex  of  external  suggestion  rather 
than  driven  to  crime  by  their  own  wills ;  for  such 
criminals  do  not  premeditate  crime,  but  are  simply 
drawn  into  the  whirlpool,  often  against  their  own 
wills,  and  almost  always  with  their  own  wills  un- 
concerned, by  the  strong  forces  of  imitation. 

The  crowding  together  of  large  numbers  in 
tenement  districts,  where  the  conditions  both  mor- 
ally and  physically  are  unwholesome,  limits  greatly 
the  opportunities  for  character  development,  and 
consequently  may  be  reckoned  either  mediately  or 
immediately  among  the  crime  producing  condi- 
tions. I  knew  a  case  of  rape  which  came  from  a 
room  in  which  nine  persons  of  both  sexes  were 
living.  Such  conditions  are  fruitful  of  rape  and 
incest,  and  it  may  be  accounted  a  remarkable  cir- 
cumstance if  any  good  at  all  be  found  to  flow 
from  such  environments. 

33 


Causes  and  Cures  of  Crime 

Many  criminal  types  are  ascribed  to  the  condi- 
tions of  extreme  poverty  and  excessive  wealth, 
and  these  conditions  are  therefore  classified  as 
among  the  economic  conditions  which  are  com- 
prised within  the  social  factors  of  crime.  It  is 
not  true,  however,  that  poverty  in  and  of  itself  is 
a  decisive  factor.  If  that  were  true  the  countries 
having  the  least  wealth  would  show  the  greatest 
ratio  of  thefts,  and  the  smallest  proportion  would 
occur  in  the  rich  countries.  But  statistics  show 
that  there  is  less  of  stealing  in  proportion  to  pop- 
ulation in  poverty-stricken  Ireland  than  there  is 
in  prosperous  England.  Other  comparatively 
poor  countries,  like  Hungary  and  Spain,  also  show 
a  lower  ratio  of  theft  than  do  some  of  the  richer 
nations. 

It  is  noticeable,  however,  that  crimes  against 
property  rights  are  most  numerous  where  abject 
poverty  and  inordinate  wealth  exist  side  by  side 
or  in  close  proximity.  As  Fornasari  says,  this  fa- 
vors the  tendency  toward  crime  upon  the  one  hand, 
and  on  the  other  furnishes  better  opportunities 
for  it.  One  may  reconcile  himself  to  poverty 
where  all  are  poor,  but  it  seems  harder  to  endure 
privation  in  the  sight  of  opulence,  especially  un- 
earned or  ill-gotten  wealth.  Wherever  poverty 
operates  as  an  inducement  to  crime  it  usually  op- 

34 


Social  Factors  of  Crime. 

crates  as  a  secondary  influence ;  that  is  to  say,  men 
do  not  usually  steal  to  relieve  hunger — only  about 
five  per  cent  of  thefts  are  for  food  and  clothing — 
but  the  hard  struggle  engendered  by  poverty  may 
sometimes  disorganize  the  family,  destroy  the 
home,  induce  the  recklessness  which  is  born  of  de- 
spair, and  thus  indirectly  set  in  motion  the  agencies 
that  result  in  crimes  of  various  kinds.  When  men 
are  thrown  suddenly  out  of  employment  because 
of  business  depression  or  some  great  catastrophe, 
the  moral  equilibrium  is  lost  and  there  is  a  gen- 
eral tendency  to  crime.  In  France,  Allard,  Vil- 
lerme,  Mercie  and  Fregier  have  shown  that  unjust 
taxation,  and  especially  the  taxation  of  food  stuffs, 
have  operated  to  increase  the  tendency  of  crime; 
while  Ferri  thinks  that  free  trade  and  "immunity 
from  taxation  for  the  minimum  necessary  to  ex- 
istence," would  tend  to  diminish  crime. ^'^  That 
the  monopoly  of  natural  resources,  resulting  as  it 
does  in  a  denial  of  equal  rights  to  labor  and  to  ex- 
clusively enjoy  the  gains  of  individual  industry, 
operates  to  promote  industrial  serfdom  and  con- 
sequent deterioration,  is  the  hypothesis  of  Henry 
George.*® 

As  to  the  criminal  influence  of  great  wealth 

"  See  Ferri :    Crlm.  Soc,  pp.  114,  et  seq. 
"  Prosrress  and  Poverty. 

35 


Causes  and  Cures  of  Crime 

upon  its  possessors,  statistics  do  not  serve  us.  Wc 
know  that  nearly  all  convicts  are  very  poor.  Per- 
sonally I  have  never  seen  one  who  was  not  poor — 
even  in  the  "banker's  row."  Few  of  them  possess 
anything  at  all,  what  little  they  once  had  having 
usually  been  taken  by  their  lawyers  for  their  de- 
fense. But  this  does  not  prove  that  the  posses- 
sion of  great  wealth  may  not  be  a  crime-breeder. 
Whenever  wealth  begets  idleness  and  dissipation, 
vice  and  crime  are  sure  to  follow;  and  we  know 
this  as  certainly  as  we  know  that  a  rifle  ball,  pass- 
ing through  the  heart,  will  produce  death — no 
mortuary  statistics  being  required  to  prove  the 
latter  proposition.  Idleness  and  dissipation,  how- 
ever, are  the  proximate  cause,  in  any  event,  and 
one  need  not  be  rich  in  order  to  enjoy  a  monopoly 
of  both.  When  persons  of  wealth  fall  into  vicious 
habits  they  do  so  for  the  same  general  reasons 
that  impel  poor  persons  to  the  same  conduct;  they 
do  not  entertain  a  proper  sense  of  their  responsi- 
bility to  society — or,  in  other  words,  they  have 
not  been  properly  educated. 

The  lack  of  proper  education  is,  indeed,  a  most 
prolific  cause  of  crime.  This  is  not  an  allusion  to 
the  baneful  effects  of  illiteracy  alone.  Illiteracy 
is  of  itself  so  obviously  brutalizing  that  its  dangers 
need  not  be  pointed  out.     The  man  who  cannot 

36 


Social  Factors  of  Crime. 

read  or  write  is  necessarily  a  menace  to  civiliza- 
tion, and  only  in  the  proportion  that  he  has  been 
overcome  and  his  influence  minimized  has  civiliza- 
tion advanced.  But  when  we  have  progressed  be- 
yond the  state  of  illiteracy  we  still  find  men  who, 
though  statistically  enrolled  among  the  educated 
classes,  are  not  educated.  They  have  been  in- 
structed, but  not  educated.  No  completely  edu- 
cated man  will  become  a  criminal.  A  proper  edu- 
cation will  not  only  develop  the  intellect,  but  will 
quicken  the  moral  impulses  and  sensibilities.  A 
person  so  educated  will,  in  the  phrase  of  Marcus 
Aurelius,  "understand  the  natural  beauty  of  a 
good  action  and  the  deformity  of  an  ill  one." 

The  third  and  last  of  the  conditions  into  which 
we  have  divided  the  social  factors  of  crime,  in  its 
broader  sense  really  includes  them  all.  No  con- 
dition of  society  can  be  entirely  rational  and  just 
that  is  in  conflict  with  the  moral  law.  "Of  all  the 
dispositions  and  habits  which  lead  to  political  pros- 
perity," said  Washington  in  his  Farewell  Address, 
"religion  and  morality  are  indispensable  sup- 
ports. .  .  .  And  let  us  with  caution  indulge 
the  supposition  that  morality  can  be  maintained 
without  religion."  Whether  we  consider  the  evils 
of  intemperance,  greed,  prostitution  and  divorce, 
or  crimes  of  dishonesty,  or  acts  done  in  malice  or 

37 


Causes  and  Cures  of  Crime 

in  a  heat  of  passion,  whatever  the  particular  vice 
we  discover  and  distinguish  as  a  cause  of  human 
misery  and  social  disaster,  we  have,  forever  at 
hand,  not  only  an  antidote  but  a  panacea  in  the 
precepts  of  religion.  No  man  can  follow  the  pre- 
cepts of  the  Christian  religion  and  be  a  criminal. 
Man,  as  a  social  being,  requires  something  beyond 
the  coercive  authority  of  penal  statutes  to  impress 
upon  him  that  obedience  to  moral  obligation  so 
necessary  to  the  existence  of  all  righteous  govern- 
ment. Positive  law  cannot  extend  to  the  correc- 
tion of  the  private  vices  of  individuals.  The  law 
cannot  make  good  citizens.  It  can  only  regulate 
their  conduct  after  another  power  has  brought 
them  into  being.  Taking  human  nature  as  it  is, 
we  know  that  the  natural  love  of  right  is  not  so 
strong  in  the  heart  of  man,  and  the  fear  of  penal 
statutes  is  not  so  great,  that  he  will  always  do 
right  merely  because  it  is  right  or  avoid  wrong 
simply  because  his  wrongful  act  may  fall  within 
the  inhibitions  of  a  statute.  There  must  be  a 
moral  force  behind  the  law.  There  must  be  a  love 
of  law  and  a  spirit  of  civic  responsibility  among 
the  people,  or  the  whole  contents  of  the  statute 
book  will  be  "as  sounding  brass  or  a  tinkling  cym- 
bal." There  is  but  one  agency,  generally  speak- 
ing, that  can  enforce  perfect  obedience  to  moral 

38 


Social  Factors  of  Crime. 

obligation;  and  that  agency  is  a  deep  sense  of 
religion,  permeating  the  mind  with  the  idea  of  ac- 
countability to  a  Supreme  Being  for  every  thought 
and  deed.  The  church  is  thus  the  great  enemy  of 
every  anti-social  tendency.  It  is  the  mightiest 
moral  force  in  the  world  today.  Irreligious  ten- 
dencies are  usually  followed  by  moral  disintegra- 
tion; for,  when  the  standards  of  righteousness  be- 
come confused  or  lost,  the  anti-social  tendencies 
thrive  with  less  resistance,  and  crime  is  the  inevit- 
able result.  It  may  be  safely  asserted,  then,  that 
the  lack  of  religion,  for  men  attempting  to  live  in 
a  state  of  organized  society,  is  a  cause  of  crime. 
There  can  be  no  social  conscience  without  an  indi- 
vidual conscience,  and  the  individual  conscience 
will  forever  find  in  the  spirit  of  true  religion  its 
strongest  support.  Lombroso  himself,  though  no 
friend  of  religion  in  general,  and  especially  as  it 
exists  on  the  continent  of  Europe,  attests  the  good 
that  has  been  accomplished  by  some  forms  of  re- 
ligion. 

The  author  yields  to  none  in  his  admiration  of 
the  genius  and  scholarship  of  Cesare  Lombroso, 
whose  gigantic  intellect  shed  perpetual  glory  up- 
on the  science  which  it  founded;  but  when,  in  his 
"Crime,  Its  Causes  and  Remedies" — a  book  dis- 
tinguished for  acuteness  of  judgment  and  pro- 

39 


Causes  and  Cures  of  Crime 

fundity  of  learning — he  says  that,  "It  is  time  to 
free  ourselves  from  the  atavistic  tendency,  which 
has  survived  unnoticed  even  in  the  most  scientific 
observer,  to  regard  religion  as  a  universal  pana- 
cea for  crime,"  strict  candor  must  impel  the  re- 
sponse that  the  great  Italian  has  failed  to  grasp 
the  true  nature  of  religion  or  to  recall  its  most 
signal  historic  achievements. 

What,  it  may  be  asked,  would  be  the  condition 
of  the  government  of  the  United  States  today  if 
all  American  citizens  were  insensible  to  the  re- 
ligious meaning  of  an  oath?  What,  in  such  event, 
would  become  of  the  machinery  of  our  courts? 
Lombroso  quotes  Sergi^^  in  the  following  words : 
"The  true  morality  is  instinctive;  the  moral  sense 
is  like  the  feeling  of  pity;  if  it  does  not  already 
exist,  neither  religious  nor  educative  influence,  nor 
any  precept,  will  be  able  to  create  it."  This  is  as 
much  as  to  say  that  a  man  who  is  not  good  can 
never  become  so,  or  that  uncivilized  peoples  must 
remain  forever  in  a  state  of  barbarism.  Such  a 
doctrine  is  contrary  to  all  human  experience.  It 
would  make  civilization  a  chimera  and  reforma- 
tion an  impossibility. 

After  the  downfall  of  the  Western  Empire, 
the    ministers    of    the    new    religion,    by    their 

"Trlbuna  Guidizlaria. 

40 


Social  Factors  of  Crime. 

erudition,  their  habits  of  peace  and  their 
industry,  greatly  accelerated  the  formation 
of  those  civic  institutions  which  constitute  the 
substructure  of  modern  European  governments. 
Professor  Roscher^^  states  that  the  church 
has  passed  through  almost  every  stage  of  develop- 
ment in  advance  of  the  state.  Thomas  Jefferson 
was  clearly  wrong  when  he  wrote^^  that:  "In 
every  country  and  in  every  age  the  priest  has  been 
hostile  to  liberty."  It  was  Archbishop  Anselm 
who  led  the  opposition  to  the  tyranny  of  William 
Rufus  and  extorted  the  first  charter  from  Henry 
I.,  and  it  was  Cardinal  Langton  who  led  the  barons 
against  King  John  and  gave  Magna  Charta  to 
the  world. 

Whether  founding  seminaries  to  wreathe  with 
new  laurels  the  brow  of  learning,  or  building 
hospitals  to  succor  the  distressed;  whether  pierc- 
ing the  heavens  with  cathedral  spires,  or  winning 
in  trackless  wilds  among  heathen  tribes  the  crown 
of  martyrdom,  in  every  age  and  in  every  land  the 
priests  of  the  Christian  religion  have  been  the 
wonder  and  admiration  of  mankind.  In  all  the 
hoary  annals  of  time  they  are  without  parallel  or 
counterpart.     From  the  catacombs    of    imperial 

spoilt  Econ.,  Vol.  2,  p.  228. 

"Letter  to  Spafford,  March  17th,  1814. 

41 


Causes  and  Cures  of  Crime 

Rome  they  ascended  to  the  palace  of  the  Caesars, 
and  for  the  mailed  fist  of  Roman  militarism  which 
then  ruled  the  world,  they  substituted  the  mild  and 
salutary  Gospel  of  the  Prince  of  Peace.  The 
fierce  hordes  of  northern  barbarians  which  beat 
down  the  Roman  legions  and  swept  the  Roman 
senator  from  his  curule  chair,  halted  at  the  door 
of  the  sanctuary  and  bowed  at  last  before  the 
wand  of  the  Crozier  and  the  magic  of  the  Cross. 
Through  the  troubled  centuries  to  come  it  was 
the  monks  and  priests  of  Rome  who  carried  the 
torch  of  learning  into  the  dark  places  and  caused 
Christian  cities  to  spring  from  the  brambles,  bogs 
and  fens  of  savage  wilds.  As  with  the  rod  of 
Moses,  they  smote  the  rock  of  the  wilderness,  and 
there  gushed  forth  the  fountains  of  civilization; 
they  touched  the  desert,  and  it  sprang  into  full- 
ness of  life. 

What  power  but  the  church  could  have  estab- 
lished the  "Truce  of  God,"  which,  during  an  age 
of  bloodshed,  restored  peace  to  Europe  at  such 
frequent  intervals  as  to  make  perpetual  war  no 
longer  possible?  The  charge  that  the  mediaeval 
clergy  were  supporters  of  despotism  is  refuted  by 
Hallam  in  his  "History  of  the  Middle  Ages,"'and 
the  same  learned  author  remarks  the  impetus 
given  by  Christianity  to  the  formation  of  civic  in- 

42 


( 


Social  Factors  of  Crime. 

stitutions.  M.  Guizot  expresses  the  same  views 
in  his  "History  of  Civilization  in  Europe." 

"Let  us,"  in  the  words  of  Montesquieu,^^  "set 
before  our  eyes,  on  the  one  hand,  the  continual 
massacres  of  the  kings  and  generals  of  the  Greeks 
and  Romans;  and  on  the  other  the  destruction  of 
people  and  cities  by  those  famous  conquerors, 
Timour  Bey  and  Jenghiz  Khan,  who  ravaged 
Asia ;  and  we  shall  see  that  we  owe  to  Christian- 
ity in  government  a  certain  political  law  and  in 
war  a  certain  law  of  nations,  benefits  which  human 
nature  can  never  sufficienty  acknowledge.  .  .  . 
The  principles  of  Christianity  deeply  engraved  on 
the  heart  would  be  infinitely  more  powerful  than 
the  false  honor  of  monarchies,  than  the  humane 
virtue  of  republics,  or  the  servile  fear  of  despotic 
states." 

The  question  of  divorce  is  a  socio-religious 
question  and  is  one  that  strikes  directly  at  the 
heart  of  society.  Sexual  crimes  are  the  specific 
crimes  of  advanced  civilization,  according  to  Lom- 
broso,  Penta,  ViazzI  and  Krafft-Ebing;  and  Lom- 
broso  singles  out  the  remedy  of  divorce  as  the 
most  powerful  preventive  of  such  crimes.  This 
conclusion  appears  to  be  based  upon  Ferri's  sta- 
tistics, which  show  that  in  Germany  and  France 

"Esprit  dea  Lois. 

43 


Causes  and  Cures  of  Crime 

convictions  for  adultery  and  other  sexual  crimes, 
within  a  given  period,  were  most  numerous  In  dis- 
tricts where  divorce  did  not  exist.  But  the  same 
statistics  would  as  easily  support  an  argument  in 
favor  of  "free  love,"  and  the  non-existence  of  mar- 
riage. The  crime  of  adultery  presupposes  the  ex- 
istence of  marriage.  Abolish  the  marital  relation 
and  you  preclude  all  possibility  of  violating  it,  of 
course;  but  such  a  course  would  suggest  the  ex- 
periment of  the  ancient  Greek  State  In  which 
there  was  no  money  coined  save  from  iron  which 
had  first  been  rendered  worthless — and  this  in 
order  to  prevent  the  people  from  loving  money. 
Plato  urging  a  community  of  wives  and  theoret- 
ical state  paternity  was  not  so  inconsistent;  but 
his  premises  were  false.  Divorce  Is  not  a  panacea 
for  sexual  crimes,  nor  is  It  even  a  mild  corrective. 
At  least,  it  has  not  been  so  with  us.  Assuredly, 
divorce  is  sufficiently  prevalent  In  the  United 
States.  With  us  it  amounts  almost  to  a  national 
scandal.  But  are  sexual  crimes  less  numerous 
here?  The  Chicago  Vice  Commission,  in  its  re- 
port upon  the  social  evil  in  Chicago  (published  in 
191 1),  after  an  exhaustive  consideration  of  the 
subject,  records  Itself  of  the  opinion  that  "divorce, 
to  a  large  extent,  is  a  contributory  factor  to  sex- 
ual vice."    Says  August  Drahms  :^^  "Divorce  and 

»The  Criminal,  p.  285. 

44 


Social  Factors  of  Crime. 

crime  go  hand  in  hand,  and  juvenile  crime  is  shel- 
tered beneath  its  wings."  Ireland,  the  least  crim- 
inal nation  of  Europe,  has  the  fewest  divorces. 

After  referring  to  the  manner  in  which  Tacitus 
contrasted  the  chastity  of  the  German  women  with 
the  conjugal  infidelity  of  the  Roman  matrons. 
Gibbon,  in  the  ninth  chapter  of  volume  one  of  his 
history,  observes :  "Although  the  progress  of  civ- 
ilization has  undoubtedly  contributed  to  assuage 
the  fiercer  passions  of  human  nature,  it  seems  to 
have  been  less  favorable  to  the  virtue  of  chastity, 
whose  most  dangerous  enemy  is  the  softness  of 
the  mind.  The  refinements  of  life  corrupt  while 
they  polish  the  intercourse  of  the  sexes.  The 
gross  appetite  of  love  becomes  most  dangerous 
when  it  is  elevated,  or,  rather,  indeed,  disguised, 
by  sentimental  passion.  The  elegance  of  dress,  of 
motion  and  of  manners,  gives  a  lustre  to  beauty 
and  inflames  the  senses  through  the  imagination. 
Luxurious  entertainments,  midnight  dances  and 
licentious  spectacles,  present  at  once  temptation 
and  opportunity  to  female  frailty." 

Indeed,  throughout  all  history,  licentiousness 
has  as  certainly  attended  upon  luxury  as  luxury 
has  followed  upon  the  heels  of  wealth.  When 
the  tide  of  materialistic  ideas  sets  in  upon  a  na- 
tion chastity  is  the  first  of  the  virtues  to  be  set 

45 


Causes  and  Cures  of  Crime 

adrift.  Will  divorce  stem  the  tide?  There  is 
reason  to  believe  exactly  the  contrary.  Fifty  per 
cent  of  the  children  in  our  reform  schools  arc  the 
children  of  divorced  parents.  Fully  seventy-five 
per  cent  of  juvenile  criminals  have  had  bad  home 
environment,  and  a  very  large  proportion  of  adult 
criminals  may  trace  their  downfall  to  the  ruined 
home. 

So  long  as  we  cannot  guarantee  infallibility  in 
matrimonial  selection  the  state  must  and  will,  un- 
der certain  limitations  and  restrictions,  recognize 
divorce.  It  may  minimize,  but  not  prohibit. 
However,  the  root  of  the  evil  lies  not  in  separa- 
tion, but  in  the  causes  which  induce  separation. 
Unhappy  marriages  are  due  to  one  or  both  of  two 
general  causes,  viz. :  ( i )  hasty  and  inconsiderate 
marriage,  and  (2)  improper  conduct  after  mar- 
riage. Recognizing,  no  doubt,  the  dangers  fol- 
lowing from  hasty  marriages,  Pope  Innocent  III, 
in  the  year  12 15,  established  the  publication  of 
the  marriage  banns,  and  the  marriage  banns  was 
afterwards  recognized  by  the  laws  of  England,  in 
the  statutes  of  George  II.  and  George  III.,  as  well 
as  in  the  laws  of  some  other  nations.  But  the 
three  weeks'  notice  thus  provided  is  not  sufficient 
in  point  of  time,  is  not  of  universal  application, 
and  is  not  of  sufficiently  wide  publicity.  However, 

46 


Social  Factors  of  Crime. 

an  extension  of  the  idea  involved  in  the  banns 
would  prevent  many  ill-judged  marriages,  and 
the  subject  is  now  receiving  the  consideration  of 
many  legislative  bodies  in  the  United  States.  Im- 
pediments to  marriage  and  the  subject  of  matri- 
monial selection  will  be  further  discussed  in  Chap- 
ter IV.,  of  this  volume,  under  the  title  "Eugenics." 
But  after  all  has  been  said  upon  the  subject  of 
marriage  and  divorce  and  sexual  crime,  we  are 
brought  to  the  conclusion  that,  after  all,  the  home 
is  the  infallible  standard  and  criterion  of  a  na- 
tion's life.  Influences  that  destroy  the  home, 
whatever  they  may  be,  will  as  certainly  destroy 
alike  the  individual  and  the  national  character. 


47 


CHAPTER  III. 

Individual  Factors  of  Crime. 

Seldom  or  never  do  the  various  causes  of  crime 
act  independently  of  each  other,  but  the  one  ever 
present  and  continuing  factor  is  the  individual 
factor.  Cosmic  and  social  influences  must  unite 
in  their  operation  upon  an  individual  character  in 
order  to  produce  a  criminal,  and  those  influences 
are  relatively  of  greater  or  less  importance  accord- 
ing to  the  strength  or  weakness  of  the  moral  and 
physical  character  of  the  individual.  Hence  it  is 
that  the  thoughtful  student  of  crime  and  its  pre- 
vention is  forced  to  conclude  with  Lydston,  that, 
"the  nearer  we  get  to  the  marrow  of  criminality, 
the  more  closely  it  approximates  pathology."  This 
subject  was  discussed  at  the  Thirty-Eighth  Annual 
Convention  of  the  American  Academy  of  Medi- 
cine, which  convened  at  Minneapolis,  June  13, 
1 9 13.     It  was  shown  that  positive    results    had 

48 


PJ^ATE  III.— A  "KIT"  OF  BURGLAR'S  TOOLS. 
This  is  said   to  be  the  most  complete  collection   in   existence. 

(Courtesy  St.  Louis  Police  Department.) 


Individual  Factors  of  Crime 

been  obtained  by  the  medical  and  surgical  treat- 
ment of  criminals. 

The  frequent  recurrence  of  the  phenomena  of 
atavism  and  heredity  has  led  many  eminent  investi- 
gators to  withhold  their  concurrence  from  the 
view  that  crime  is  a  disease.  This  is  true  of  some 
Europeans,  where  the  existence  of  a  criminal  type 
is  best  established.  Arthur  MacDonald^  is  also 
of  the  same  opinion;  but  MacDonald's ,  conclu- 
sions are  based,  as  he  says,  upon  reports  from  the 
various  penitentiaries  in  the  United  States,  indicat- 
ing that  an  overwhelming  proportion  of  the  con- 
victs therein  confined  are  in  an  excellent  state  of 
health.  However,  these  reports  emanate  neces- 
sarily from  prison  wardens  and  boards  whose 
official  relation  is  wholly  casual  and  incidental  to 
a  career  of  politics,  and  a  great  number  of  whom 
have  shown  no  serious  disposition  to  investigate 
or  to  understand  either  the  mental  or  the  phys- 
ical condition  of  the  inmates.  But,  although 
atavism,  strictly  speaking,  is  not  itself  a  disease, 
none  will  deny  that  the  conditions  which  induce 
reversion  to  savagery  may  sometimes  be  patho- 
logic in  their  nature.  Moreover  the  savage  nature, 
under  proper  therapeutic  influences,  is  susceptible 
of  amelioration.     This  is  confessedly    and    con- 

>  Man  and  Abnormal  Man. 

49 


Causes  and  Cures  of  Crime 

spicuously  true  of  the  American  Indian,  among 
whom  cultural  influences  work  almost  as  rapidly 
and  effectively  as  they  do  among  products  of  a 
higher  civilization.  And,  singularly  enough,  the 
more  savage  tribes  yield  as  rapidly  to  civilizing 
influences  as  do  the  relatively  less  dangerous.  In 
a  brief  sojourn  among  the  Apaches  and  Coman- 
ches  in  1901,  I  observed  that  the  Apaches,  then 
the  most  savage  of  our  Indian  tribes,  and  the  last 
to  try  conclusions  with  the  American  army,  little 
more  than  a  decade  after  their  last  savage  foray 
against  the  white  settlements  of  the  Southwest, 
were  acquiring  the  habits  of  industry  and  peace- 
ful husbandry  more  rapidly  than  were  a  large 
number  of  the  more  peaceably  disposed  and  rela- 
tively harmless  Comanches.  If  proper  educa- 
tional methods  can  thus  transform  the  character 
of  a  warlike  and  savage  tribe  in  the  brief  space  of 
ten  or  twenty  years,  may  we  not  expect  as  favor- 
able results  when  curative  methods  are  applied  to 
the  atavistic  criminal?  If  savagery  yields  to  treat- 
ment, may  not  atavism  do  so  likewise?  That  it 
does  so  yield  is  beyond  question,  although  it  may 
offer  stubborn  resistance  and  in  some  cases  may  ad- 
mit of  no  amelioration.  Conceding  the  biological 
principle  of  reversion  may  not  the  reversion  be  to 
a  diseased  type?     If  that  be  true,  then  the  prev- 

50 


Individual  Factors  of  Crime 

alence  of  atavism  not  only  does  not  exclude  the 
theory  of  disease,  but  may  often  tend  to  support 
It.  Unfortunately,  in  these  cases  of  atavism  we 
have  no  means  of  determining  the  exact  period  to 
which  the  subject  of  reversion  Is  to  be  assigned. 
We  cannot  tell  whether  the  given  atavistic  type  is 
a  reversion  of  the  fifth  or  the  tenth,  or  the  twen- 
tieth ancestor,  or  to  the  period  of  neolithic  or 
paleolithic  man.  That  can  be  arrived  at  but  ap- 
proximately, and  by  comparison  of  what  Is  known 
of  the  ancient  types  with  the  atavistic  type  be- 
fore us. 

One  trait  which  the  criminal  has  In  common 
with  the  savage  is  his  apparently  instinctive  pas- 
sion for  gambling,  and  this  fact  is  seized  upon  as 
one  of  the  cardinal  proofs  of  criminal  atavism. 
There  can  be  no  doubt  as  to  the  antiquity  of 
gambling,  and  especially  of  the  use  of  dice.  The 
dice  discovered  in  the  ruins  of  Thebes  are  not  es- 
sentially different  from  the  dice  in  use  today,  and 
this,  no  doubt.  Is  the  oldest  of  the  gambling  games. 
Some  have  ascribed  the  origin  of  dice  to  Greece, 
where  the  game  was  found  as  early  as  the  time  of 
Psalmedes,  who  has  been  accredited  with  the  in- 
vention of  the  game.  Dice  were  known  at  the 
court  of  Croesus,  and  Heredotus  attributed  their 
origin  to  the  pleasure-loving  Lydlans.  In  America, 

51 


Causes  and  Cures  of  Crime 

however,  the  game  is  indigenous  to  the  soil  and 
was  the  aboriginal  game  of  chance.  Dice  have 
been  found  in  the  prehistoric  ruins  of  New  Mex- 
ico, Arizona  and  Utah,  and  the  game  is  positively 
known  to  have  been  familiar  to  at  least  one  hun- 
dred thirty  distinct  tribes  of  Indians.  An  old 
Maricopa  legend  ascribed  to  it  a  mythological 
origin,  and  the  game  was  sacred  to  the  war  god 
of  the  Zuni.2 

The  ancient  Persian  monarchs,  according  to 
Plutarch,  were  wont  to  amuse  themselves  with 
dice,  and  occasionally  staked  their  slaves  and 
eunuchs  upon  the  issue  of  the  game.  Writing  of 
the  "Manners  of  the  Germans,"  Tacitus,  the 
great  authority  upon  the  primitive  Teutonic  tribes, 
remarks :  "In  the  character  of  a  German  there 
is  nothing  so  remarkable  as  his  passion  for  play. 
Without  the  excuse  of  liquor  (strange  to  say),  in 
their  cool  and  sober  moments,  they  have  recourse 
to  dice  as  to  a  serious  and  regular  business,  with 
the  most  desperate  spirit  committing  their  whole 
substance  to  chance,  and  when  they  have  lost  their 
all,  putting  their  liberty  and  even  their  persons 
upon  the  last  hazard  of  the  die."  St.  Ambrose, 
in  one  of  his  most  interesting  tracts,  relates  the 
same    circumstance    with    regard   to    the    Huns, 

*  See  24th  Annual  Report,  Bureau  of  American  Bthnolosry- 
52 


Individual  Factors  of  Crime 

(though,  unlike  Tacitus,  he  expresses  no  aston- 
ishment at  their  sobriety  during  the  performance) , 
and  adds :  "They  live  without  laws,  yet  obey  the 
laws  of  dice." 

The  antiquity  of  the  gambling  instinct  and  its 
prevalence  in  modern  times,  tend  to  impel  the 
conclusion  that  if  the  passion  for  gambling  is  to 
be  regarded  as  a  savage  instinct,  modern  civiliza- 
tion is  but  veneered  savagery.  Certainly,  this  is 
one  trait  displayed  by  civilized  man  in  common 
with  the  most  barbarous  peoples,  for  it  is  the  one 
distinguishing  characteristic  of  all  savages.  But 
curative  agencies  can  remove  it,  even  among  sav- 
ages (as  the  history  of  the  American  Indian 
shows),  and  even  this  characteristic  may  be  clas- 
sified as  a  neurosis,  common  alike  to  civilized  and 
barbaric  peoples.  It  must  be  confessed  that  in 
the  search  for  the  criminal  type  more  research  has 
been  exerted  than  has  been  employed  in  the 
search  for  the  normal  type.  Moreover,  the 
psychical  and  physiological  characteristics  of 
criminals  and  normals  are  in  some  instances  found 
to  be  the  same.  Whether  or  not  this  be  due  to 
the  fact  that  these  normals  are  themselves  poten- 
tial criminals,  the  fact  is  none  the  less  disconcert- 
ing to  the  statistician.  Criminologists,  of  course, 
meet  the  situation  with  the  observation  that  non- 
53 


Causes  and  Cures  of  Crime 

criminal  types  bearing  the  stigmata  of  degeneracy 
may  not  be  expected  to  remain  permanently  aloof 
from  crime.  And  this  is  probably  true;  but  it 
does  not  lessen  the  difficulty  of  correct  classifica- 
tion. 

Among  the  physical  characteristics  of  criminals 
are  the  following:  aural  anomalies,  dispropor- 
tionate length  of  arms,  defective  chest  develop- 
ment, weak  heart,  prehensile  toes,  left-handed- 
ness,  atavistic  dental  anomalies,  prognathic  jaw, 
facial  asymmetry,  cranial  stigmata — such  as  re- 
treating frontal  bone,  large  supra-orbital  bosses 
and  small  cranial  capacity — retreating  chin,  pal- 
lor of  skin,  small  and  restless  deep  set  eyes,  pau- 
city of  beard  in  the  men  and  masculinity  in  the 
woman,  dark  hair  (predominant  in  the  propor- 
tion of  49  to  33  per  cent),  deformity  of  hands — 
large  and  short  in  murderers  and  long  and  nar- 
row in  thieves — sexual  anomalies,  and  promi- 
nence of  the  zygoma.  Laycock,  Lombroso,  Fri- 
gerio,  Frere,  and  Siglas  are  among  those  who 
have  noted  the  anomalous  ears  of  criminals.  Aural 
anomalies  and  deformities  are  especially  frequent 
among  the  insane,  idiotic  and  epileptic.  The  Dar- 
winian tubercle  is  often  found  among  the  insane 
and  criminal  types. 

It  is  well  known  that  cardiac  disease  is  frequent 
54 


Individual  Factors  of  Crime 

among  the  insane  and  the  same  condition  among 
criminals  has  been  noted  by  Flesch,  Hagen,  Men- 
dal,  D'Astros  and  Penta.  Penta^  has  likewise 
noticed  the  presence  of  prehensile  toes  among 
criminals.  The  eyes  of  criminals  have  been  stud- 
ied by  Lydston,  Lombroso  and  Vidocq,  among 
others.  Marro  places  stress  upon  the  prominence 
of  the  zygoma.  Sexual  anomalies  are  discovered 
by  Ellis  and  Ottolenghi.  Lacassagne  finds  600 
out  of  800  criminals  with  large  finger  reach. 

Among  the  psychical  peculiarities  of  criminals 
are  vanity,  emotional  instability,  inferior  intelli- 
gence, improvidence,  malingering,  tattooing,  im- 
patience, obtundity  of  the  moral  sense,  the  use  of 
slang,  vengeance,  defective  senses,  relative  insen- 
sibihty  to  pain,  meteoric  sensibility,  superstition, 
lack,  of  self  control,  impulsiveness,  want  of  fore- 
sight, precocity  and  tendency  to  relapse. 

Vanity,  bordering  upon  the  exaggerated  ego  of 
insanity,  is  the  characteristic  of  all  instinctive  crim- 
inals. Their  emotional  instability  is  attested  by 
Havelock  Ellis,  Krafft-Ebing,  Lombroso,  Lyds- 
ton, MacDonald  and  Debriick,  among  others. 
The  criminal's  use  of  slang  is  one  of  his  most  pe- 
culiar psychical  traits.  All  criminologists  have 
noticed  this.     MacDonald,  in  his  "Criminology," 

•Arch,  di  Pslchiatria,  1888. 

55 


Causes  and  Cures  of  Crime 

publishes  a  vocabulary  of  criminal  slang.  Brand 
Whitlock,  in  his  "Turn  of  the  Balance,"  puts  in- 
to the  mouths  of  some  of  his  characters  this  pe- 
culiar vocabulary  of  crime.  In  the  criminal  lex- 
icon there  is  a  striking  richness  of  synonyms.  Mac- 
Donald  found  that  criminals  have  seventeen  dif- 
ferent words  to  indicate  guards ;  seven  for  pocket, 
and  nine  for  sodomy. 

Touch  is  obtuse  among  44  per  cent  of  criminals 
as  against  29  per  cent  of  normals.  Visual  acute- 
ness  is  remarked  by  Lombroso  but  a  very  high 
percentage  of  color-blindness  is  noted  by  Bono, 
Holmgren,  Biliakow  and  Schmitz.  Biliakow  found 
a  large  proportion  of  criminals  suffering  from 
defective  hearing  in  the  left  ear. 

G.  E.  Dawson,  Fellow  in  Clark  University, 
made  a  careful  examination  of  60  delinquent 
children  of  the  average  age  of  16  years,  choosing 
the  following  classes  of  offenders :  Thieves,  in- 
cendiaries, assaulters,  sexual  offenders  and  gen- 
eral incorrigibles.  He  summarizes  their  points 
of  inferiority  to  normals  in  the  following  partic- 
ulars: 

I.  There  was  a  tendency  to  shorter  statures, 
lighter  weight,  diminished  strength  in  rfie  mus- 
cles of  the  hands,  and  greater  sensitiveness  to 
pain. 

J6 


Individual  Factors  of  Crime 


NORMAL  AND  DEGENERATE  PALATES. 


Fig.  1.— Normal  upper  jaw. 


Fisr.  2.— Abnormal  upper  jaw.  Figr.  8.— Abnormal  upper  jaw. 

"V"  shaped.  Saddle  shaped. 


(From  Chrietieon's  "Crime  and  Criminals") 

57 


Causes  and  Cures  of  Crime 

2.  There  was  a  tendency  toward  smaller 
heads,  broader  heads  and  broader  faces,  the  type 
being,  in  general,  that  of  lower  races  or  of  the 
infantile  period  of  our  own  race. 

3.  There  were  more  physical  anomalies  than 
are  found  among  normal  persons,  mainly  in  the 
direction  of  asymmetrical  heads  and  faces,  and 
deformed  palates. 

4.  There  were  more  defects  in  sight  and  hear- 
ing, and  a  greater  dullness  in  the  sense  of  touch, 
than  are  found  among  normal  persons. 

5.  The  intellectual  reactions  were,  in  general, 
inferior  to  the  normal.  More  specifically  was 
this  the  case  in  attention,  memory  and  association. 

The  superstitious  nature  of  criminals  is  well 
known.  In  this  respect  they  are  lilce  the  inveter- 
ate gamblers,  whose  superstitious  beliefs  and 
practises  are  matters  of  common  knowledge.  I 
have  seen  a  gambler  arise  from  the  table  and 
walk  around  his  chair  to  "change  his  luck."  I  knew 
another  to  change  his  trousers  with  the  same  ob- 
ject in  view.  The  majority  of  them  fear  the  num- 
ber 13,  and  practically  all  believe  in  the  mascot 
and  the  hoodoo.  Although  all  gamblers  are  not 
criminals  as  we  understand  the  term,  nearly  all 
criminals  are  gamblers,  and  the  criminal  and  gam- 
ing instincts  are  very  nearly  allied.    Of  such  men- 

58 


Individual  Factors  of  Crime 

tal  types  superstition  is  the  groundwork,  and  is 
the  psychic  anomaly  which  most  strikingly  distin- 
guishes them  from  other  men.  It  is  therefore 
not  surprising  that  the  religion  of  criminals  is,  for 
the  most  part,  merely  superstition.  MacDonald 
very  correctly  observes  that  the  criminal's  idea  of 
God  is  that  of  a  benevolent  guardian  and  accom- 
plice. In  this  view  of  the  instinctive  criminal  we 
may  well  concur  in  the  observation  of  the  Wash- 
ington criminologist,  although  we  may  think  it 
hardly  worth  while  for  him,  in  common  with  Lom- 
broso  and  others,  to  expend  time  and  labor  and 
good  printer's  ink  to  show  that  religion  does  not 
militate  against  the  commission  of  crime;  for  their 
investigations  all  tend  to  show,  if  they  show  any- 
thing at  all,  that  the  religion  of  the  criminal,  in 
very  many  cases,  merely  approximates  a  form  of 
mental  alienation,  and  should  be  characterized 
not  as  religion  but  as  superstition. 

The  precocity  of  the  born  criminal  is  well 
known.  Among  462  criminals  examined  by 
Marro,  18  per  cent  had  become  criminals  before 
reaching  the  age  of  13.  Of  43,835  German  crim- 
inals, N.  David  found  41  per  cent  under  twenty- 
one  years  of  age.  Of  a  group  of  46  criminals 
studied  by  Lombroso,  35  had  become  addicted  to 
crime  before  attaining  the  i6th  year.     The  same 

59 


Causes  and  Cures  of  Crime 

authority  places  the  maximum  of  criminality  be- 
tween the  ages  of  15  and  25.  In  the  course  of 
some  investigations  made  by  me  in  1906,  I  found 
the  age  of  maximum  criminality  in  the  United 
States  to  be  23.  It  has  been  noted  in  this  connec- 
tion that  precocity  is  a  well  known  characteristic 
of  savages,  and  this  is  urged  as  an  additional 
proof  of  the  atavistic  origin  of  the  criminal  type. 

The  tendency  to  precocity  appears  to  increase 
as  we  approach  the  lower  races  and  the  lower  an- 
imals. The  young  of  the  lower  animals  are  more 
precocious  by  far  than  the  young  of  human  be- 
ings. It  is  doubtful  if  a  human  infant  one  month 
of  age  possesses  one-half  the  intelligence  of  a  pig 
or  pup  of  the  same  age ;  certainly  the  human  being 
of  that  age  is  the  more  helpless. 

Dr.  G.  Stanley  Hall*  thinks  that  modern  indus- 
trial life  tends  to  promote  precocity.  He  says  that 
chief  among  the  causes  of  the  diseases  of  adoles- 
cence "are  all  those  inflences  which  tend  to  pre- 
cocity, e.  g.,  city  life  with  its  earlier  puberty, 
higher  death  rate,  wider  range  and  greater  super- 
ficiality of  knowledge,  observations  of  vice  and  en- 
hanced temptation,  lessened  repose,  incessant  dis- 
traction, more  impure  air,  greater  liability  to  con- 
tagion, and  absence  of  the    sanifying    influences 

*  Psychology  of  Adolescence,  vol.  1,  p.  821. 
60 


Individual  Factors  of  Crime 

and  repose  of  nature  in  country  life."  In  this 
view  of  the  matter  it  is  not  hard  to  reach  the  con- 
clusion that  precocity  also  is  of  the  nature  of  dis- 
ease. M.  Tarde,  the  French  sociologist,  thinks 
that  many  of  the  characteristics  of  the  criminal 
are  rather  the  results  of  crime  than  the  cause.  This 
is  no  doubt  measurably  true,  but  not  entirely  so. 
The  influence  of  prison  life  operating  upon  the 
criminal  would  tend  naturally  toward  the  produc- 
tion of  both  physical  and  psychical  characteristics 
which  would  not  be  found  among  persons  living 
under  different  environment.  It  has  been  asserted 
that  the  weak  lungs  of  criminals,  for  example,  are 
due  to  prison  life.  This  may  be  true  of  some 
cases,  but,  personally,  I  have  never  seen  a  tuber- 
cular convict  who  was  not  so  afflicted  (at  least  to 
some  extent,  by  reason  of  heredity  or  otherwise) 
before  entering  the  prison.  It  is  noteworthy, 
also,  that  nearly  all  tubercular  prisoners  are  con- 
victed of  some  crime  of  violence,  such  as  homi- 
cide, robbery,  rape  or  burglary;  due,  doubtless, 
to  a  weakened  nervous  condition  which  is  reflected 
in  a  kind  of  morbid  aggressiveness. 

There  are  cases  of  evident  degeneracy  in  which 
many  of  the  accepted  stigmata  are  wholly  absent, 
while  many  of  the  criteria  established  by  the  Lom- 
broso  school  are  present  in  persons  who  clearly 

6i 


Causes  and  Cures  of  Crime 

afford  no  other  evidence  of  degeneracy,  insanity 
or  criminality.  But  it  is  true  that  one  may  usu- 
ally recognize  in  the  criminal  certain  physiological 
and  psychical  peculiarities,  certain  anatomical  mal- 
formations which,  although  not  reducible  to  an 
accurate  diagnosis  as  invariable  symptoms  of  a 
specific  disease,  yet,  in  a  manner,  serve  to  mark 
out  and  set  apart  the  incorrigible  criminal  as  dif- 
ferent from  all  other  men.  This  is  my  firm  be- 
lief after  an  individual  examination  of  more  than 
3,500  felons.  When  we  have  said  that  the  crim- 
inal is  abnormal,  we  have  probably  said  all  that 
may  be  safely  said;  for  the  criminal  nature  does 
not  in  every  case  necessarily  display  functional  or 
vital  phenomena  which  may,  as  in  the  medical 
science,  be  accepted  as  certain  proof  of  a  peculiar 
disease. 

It  is  as  difficult  to  define  criminality  as  it  is  to 
define  insanity,  for  there  are  many  varying  de- 
grees and  types  of  both.  No  two  normal  men  are 
exactly  alike,  and  so  is  every  criminal  slightly  dif- 
ferent from  every  other  criminal,  and  the  condi- 
tions which  produce  crime  in  one  man  will  not 
necessarily  produce  the  same  result  in  another.  It 
is  absolutely  true,  however,  as  a  general  rule, 
that  whatsoever  operates  to  weaken  or  strengthen 
the  mental  or  moral  faculties  and  maintain  or  de- 

62 


Individual  Factors  of  Crime 

stroy  the  mental  poise  does  operate  to  accelerate 
or  retard  the  tendency  toward  crime.  In  other 
words,  "persons  of  good  sense,  sound  of  body  and 
of  mind,  and  normal  in  all  their  mental  and  phys- 
ical faculties,  seldom  in  that  state  become  crim- 
inals. They  rarely,  if  ever,  fall  until  the  balance 
is  shifted.  The  man  who  is  in  an  entirely  normal 
mental  and  physical  condition  is  naturally  averse 
to  crime.  From  various  causes  he  may  in  the 
course  of  time  become  a  chronic  derelict,  or  he 
may  lose  his  balance  but  for  a  single  moment,  the 
unhappy  moment  in  which  he  falls;  but,  at  any 
rate,  he  is  in  some  way  and  to  some  extent  "out 
of  balance"  when  the  deed  is  done.  In  most 
cases  he  at  once  recovers,  immediately  regrets  his 
offense  and  is  so  thoroughly  on  his  guard  there- 
after that  he  never  commits  crime  again.  But 
the  other  class,  the  worse,  and  fortunately  the  less 
numerous  class,  never  recover  their  equilibrium, 
if,  indeed,  they  ever  had  it,  and  they  go  on  in 
crime — because  they  cannot  help  doing  so. 

As  early  as  the  Seventeenth  Century  Sir 
Matthew  Hale,  the  author  of  the  first  great  com- 
pendium of  criminal  law,  and  himself  the  great- 
est lawyer  of  his  age,  declared:  "Most  persons 
that  are  felons  .  .  .  are  under  a  degree  of  par- 
tial insanity  when  they  commit   these    offenses." 

63 


Causes  and  Cures  of  Crime 

And  the  truth  noted  by  Hale  is  still  true  of  crim- 
inals in  our  day.  Hale's  opinion  is  supported  by 
that  of  others  who  have  had  long  and  varied  ex- 
perience in  the  handling  of  criminals.  Morel 
demonstrated  the  tendency  of  insanity  and  crime 
to  lapse  into  each  other  congenitally.  At  the 
time  Bruce  Thompson  made  his  investigations,  i 
in  47  of  the  criminal  population  of  Scotland  was 
insane,  as  against  one  in  432  among  normals.  Dr. 
Goddard  of  Vineland,  New  Jersey,  a  very  care- 
ful investigator,  says  that  25  per  cent  of  the  in- 
mates of  the  reformatories  of  the  United  States 
are  feeble-minded. 

One  penitentiary  official,  who  has  handled  more 
than  15,000  convicts — a  man  who  learned  his 
criminology  not  from  the  books,  but  from  the  liv- 
ing subject,  and  in  a  place  where  a  mistaken  diag- 
nosis would  have  resulted  in  death  to  himself  and 
others — gave  me  very  briefly  his  opinion  concern- 
ing the  criminal  class.  As  he  expressed  it,  "they 
are  all  crazy." 

This,  to  be  sure,  is  not  to  be  understood  as  such 
a  degree  or  kind  of  insanity  as  should  be  accepted 
as  a  legal  defense  to  a  criminal  prosecution.  The 
habitual  criminal  may  know  what  he  is  doing,  but 
he  is  usually  lacking  in  moral  perception  or  in  will 
power,  or  in  both.    But  the  moral  sense  while  ob- 

64 


Individual  Factors  of  Crime 

tuse  in  some  respects,  or  in  most  respects,  is  rarely 
wholly  absent,  excepting  in  a  few  cases  of  moral 
idiocy.  Thus,  a  man  may  be  an  arrant  and  incor- 
rigible forger,  and  yet  he  could  not  be  induced  to 
commit  a  murder  or  ravish  a  woman.  This  peculi- 
arity will  nearly  always  be  found  in  the  habitual 
criminal;  at  least  I  have  invariably  found  it  to  be 
so.  For  example,  I  call  to  mind  a  horse  thief.  He 
was  serving  his  third  term  for  that  offense.  When 
he  is  released  he  goes  out  and  steals  another  horse. 
This  seems  to  be  his  specialty,  and  it  never  occurs 
to  him  to  steal  anything  else,  or  to  commit  any 
other  crime.  This  man  has  the  pointed  skull  (one 
of  Lombroso's  indicia)  but  has  few  of  the  other 
physical  marks  of  degeneracy.  I  knew  another 
who  was  serving  his  third  term  for  bigamy.  He 
has  never  been  accused  of  any  other  crime;  he  is 
kind  hearted,  sober,  industrious,  and,  I  suppose, 
honest.  But  his  matrimonial  afifairs  are  always 
more  or  less  involved.  This  man  has  a  heavy 
and  protruding  jaw,  such  as  we  often  find  in  men 
who  commit  crimes  of  violence.  Ottolenghi,  how- 
ever, found  the  large  lower  jaw  to  be  character-, 
istic  among  sexual  offenders.  There  is  another, 
whom  I  call  to  mind,  as  one  who  bore  none  of  the 
usual  external  stigmata.  He  was  a  forger.  Em- 
ployed as  a  bookkeeper  in  one  of  the  prison  fac- 

6s 


Causes  and  Cures  of  Crime 

tories,  he  was  so  competent,  so  obliging,  and  ap- 
parently so  honest,  that  he  won  the  confidence  of 
the  employing  contractor  whose  influence  later  se- 
cured for  the  man  a  good  position  in  New  York 
City.  There  he  succeeded  in  business,  but  could 
not  refrain  from  committing  another  forgery. 
After  serving  a  sentence  in  New  York  he  went  to 
South  America,  and  at  last  accounts  was  in  prison 
there  for  still  another  forgery.  There  is  no  ap- 
parent reason  why  this  man  should  commit  crime, 
but  he  will  probably  always  be  a  forger;  never  a 
murderer,  rapist  or  burglar,  but  always  a  forger. 
Another  forger  of  my  acquaintance  has  served 
penitentiary  sentences  in  three  states.  His  crime 
is  always  the  forgery  of  a  check  for  ten  dollars. 
A  very  peculiar  case  which  came  to  my  notice  was 
that  of  a  burglar,  who  followed  the  trade  of  a 
journeyman  barber.  He  would  always  burglarize 
the  shop  in  which  he  was  working,  steal  the  razors, 
and  attempt  to  sell  them.  He  did  this  on  three 
occasions,  and  each  time  was  sentenced  to  the  pen- 
itentiary and  served  his  sentence.  This  man  was 
never  known  to  commit  any  other  crime,  nor  to 
burglarize  any  place  other  than  the  shop  in  which 
he  was  working  at  the  time.  Another  habitual 
criminal,  well  known  to  the  prison  and  police  offi- 
cers of  a  number  of  American  states,  was  "Dutch 

66 


Individual  Factors  of  Crime 

Charley."  He  lived  to  a  very  great  age,  and 
served  thirteen  terms  of  two  years  each  in  the 
Missouri  penitentiary,  besides  a  few  terms  in  other 
states.  In  every  case  his  crime  was  some  sort  of 
fraud  whereby  he  obtained  money  under  false  pre- 
tences— the  real  estate  transaction  being  his  fa- 
vorite game.  He  never  committed  a  crime  of  vio- 
lence. A  diamond  thief  of  my  acquaintance  never 
attempts  to  steal  anything  else.  He  frequently 
is  caught,  but  this  does  not  destroy  his  unbounded 
faith  in  his  ability  to  "get  by"  at  some  future  time. 
I  never  heard  of  his  committing  any  other  crime, 
but  he  bears  the  look  of  the  homosexual  type  of 
pervert.  Others  follow  burglary  as  a  trade,  some 
are  pickpockets  by  profession,  and  so  ad  infinitum. 
Without  attempting  the  various  and  minute 
subdivisions  practiced  by  European  students  of 
the  subject,  it  may  suffice  us  to  observe  that  of  the 
character  detailed  above  is  the  really  criminal 
class  as  we  know  it  and  understand  it  in  the  United 
States.  It  is  idle  to  assert  that  such  men  are  of 
absolutely  normal  mentality.  I,  for  one,  cannot 
account  for  such  phenomena  upon  any  rational 
hypothesis  other  than  the  theory  of  mental  ab- 
normality. While  the  symptoms  of  this  disease, 
if  such  it  be,  cannot  in  all  cases  be  referred  to  any 
appreciable  lesion  or  change  of  nerve  or  brain 

67 


Causes  and  Cures  of  Crime 

structure,  it  will  be  remembered  that  compara- 
tively but  a  few  years  have  elapsed  since  the  day 
when  mental  disorders  of  all  kinds  were  classed 
as  "diseases"  merely  in  a  figurative  sense.  The 
trend  of  investigation  today  points  unerringly  to 
a  time,  in  the  not  distant  future  let  it  be  hoped, 
when  those  morbid  mental  processes  which  even- 
tuate in  anti-social  acts  will  be  made  an  object  of 
psychiatric  attention. 

In  searching  out  the  causes  of  these  abnormali- 
ties we  nearly  always  find  some  pathological  con- 
dition in  the  physical  or  mental  constitution  of 
the  individual.  Sometimes  the  trouble  is  directly 
due  to  heredity.  Thus  in  his  book  on  "Marriage 
and  Disease,"  Dr.  Strahan  gives  a  diagrammatic 
history  of  eight  families,  showing  tendencies  to- 
ward degeneracy  running  through  several  gen- 
erations. While  in  tracing  the  posterity  of  the 
Jukes,  Dugdale  found  criminal  tendencies  in  a 
great  majority  of  the  descendants.  But  hered- 
itary tendencies  are  not  always  controlling.  It  is 
true,  also,  that  in  tracing  hereditary  influence  we 
are  sometimes  deceived  by  coincidents  which  are 
due  merely  to  similarity  of  environment. 

It  may  be  stated  as  generally  true  that  any  in- 
fluence which  tends  to  destroy  the  physical  and 
mental  vigor,  to  shatter  the  nerves  and  weaken 

68 


Individual  Factors  of  Crime 

the  will,  acts  as  a  predisposing  influence  toward 
crime.  Such  conditions  are  sometimes  caused  by 
dissipation  alone,  sometimes  by  dissipation  con- 
joined with  a  physical  ailment,  and  sometimes  by 
inherent  abnormalities  dissociated  from  any 
known  external  cause  or  established  prenatal  in- 
fluence. 

The  investigation  of  autotoxemia  in  its  rela- 
tion to  crime  has  proven  to  be  an  interesting  and 
valuable  study.  Dr.  Lydston*  says:  "That  or- 
ganic and  inorganic  poisons  of  greater  or  less  de- 
gree of  toxicity  are  developed  or  retained  in  the 
human  body  as  a  consequence  of  perverted  meta- 
bolism, improper  food,  defective  respiration, 
faulty  elimination,  deranged  glandular  action,  or 
bacterial  action  in  the  tissues  and  viscera,  espe- 
cially in  the  gastro-intestinal  tract,  is  now  gener- 
ally accepted.  The  application  of  the  various 
toxemias  thereby  produced  to  the  etiology  of  vice 
and  crime  may  seem,  at  first  sight,  far-fetched; 
but  tolerant  and  critical  reflection  should  put  it 
in  a  different  light.  .  .  .  Unstable  will  and  emo- 
tions, erratic  impulses,  acute  mania,  hypochon- 
driasis, melancholia,  suicidal  tendencies,  etc.,  have 
long  been  known  to  be  produced  by  organic  pois- 
ons introduced  from  without.     Modern  science 


"Diseases  of  Society,  etc.,  p.  211. 
69 


Causes  and  Cures  of  Crime 

is  gradually  developing  the  fact  that  they  can  be 
produced  by  poisons  elaborated  in  the  body," 

Cranial  trauma  in  its  relation  to  crime  is  like- 
wise an  interesting  study.  In  a  discussion  at  the 
Medico-Psychological  Society  of  Paris  (Proceed- 
ings for  1881)  M.  Dally  said  that:  "All  crim- 
inals who  had  been  subjected  to  autopsy  (after 
execution)  gave  evidence  of  cerebral  injury." 
That  an  injury  to  the  skull  may  produce  epilepsy 
has  long  been  among  the  recorded  facts  of  medi- 
cal science,  and  epilepsy  so  caused  has  been  re- 
lieved by  surgical  treatment.  That  epileptics  are 
all  more  or  less  irresponsible  is  well  known,  and  an 
epileptic  under  the  influence  of  intoxicants  is  usu- 
ally bereft  of  reason.  I  have  known  many  crimin- 
als who  appeared  to  have  become  such  because  of 
precisely  this  condition.  But  cranial  trauma,  or 
skull-injury,  does  not  always  result  in  epilepsy, 
and  inasmuch  as  science  does  not  at  the  present 
time  recognize  the  remote  results  of  such  cases,  I 
may  be  permitted  to  describe  a  few  subjects  which 
have  fallen  within  the  scope  of  my  own  personal 
observation : 

B.  was  a  normal  child,  with  no  vicious  traits. 
When  twelve  years  of  age  he  was  kicked  by  a 
mule,  thereby  suffering  a  skull  injury  consisting 
of  a  dent  four  inches  long  and  half  an  inch  deep 

70 


Individual  Factors  of  Crime 

above  one  ear.  Thereafter  he  evinced  all  his 
former  normal  traits,  with  the  exception  that  he 
was  so  quiet  and  reserved  as  to  be  regarded  some- 
what queer,  and  when  his  anger  was  aroused, 
which  however  was  but  seldom — he  was  uncon- 
trollable. Ten  years  later,  upon  very  slight  prov- 
ocation, he  slew  a  man  in  the  presence  of  the  vic- 
tim's family  and  then  murdered  the  whole  fam- 
ily, for  which  he  was  hanged. 

D.  suffered  a  similar  injury  in  childhood, 
but  was  thereafter  more  or  less  eccentric,  al- 
though apparently  normal  in  his  social  rela- 
tions. Many  years  later,  for  a  very  trivial 
cause,  and  without  having  exhibited  any  other 
evidence  of  insanity,  he  committed  murder; 
was  sentenced  to  death,  was  saved  from  the  gal- 
lows by  a  lunacy  commission,  and  died  in  an  in- 
sane asylum  while  submitting  to  a  surgical  opera- 
tion designed  to  relieve  the  pressure  upon  the 
brain  caused  by  the  former  injury. 

F.  was  a  citizen  of  prominence  and  respecta- 
bility, and  when  under  the  influence  of  intoxicants 
was  never  violent.  He  fell  from  a  building  and 
suffered  a  severe  injury  to  the  skull;  thereafter 
he  was  violent  and  uncontrollable  whenever  un- 
der the  influence  of  intoxicants,  although  at  other 
times  normal.  While  intoxicated  he  committed  a 
murder  upon  slight  provocation. 

S.  was  another  who  had  suffered  a  cranial  in- 
jury in  childhood.  His  nature  was  thereafter 
apparently  unchanged,  with  the    exception    that 

71 


Causes  and  Cures  of  Crime 

when  angered  he  became  uncontrollable.     After 
reaching  maturity  he  committed  murder. 

T.  was  a  normal  male  child,  with  no  criminal 
tendencies.  At  the  age  of  twenty  the  kick  of  a 
horse  produced  a  depression  of  the  temple.  He 
was  unconscious  for  several  hours.  For  several 
days  thereafter  he  was  "subject  to  dizziness, 
double  vision,  and  especially  lapses  of  memory. 
The  double  vision  remained  for  several  weeks. 
Thereafter  for  years,  when  worried,  he  exhibited 
signs  of  absent-mindedness."  (The  quotation  is 
from  the  affidavit  of  his  physician.)  Five  years 
after  the  injury  he  forged  a  check,  used  the  pro- 
ceeds to  buy  a  quantity  of  jewelry,  and  concealed 
the  proceeds  of  his  crime  in  a  place  where  it  was 
certain  to  be  discovered.  He  has  exhibited  no 
other  evidences  of  insanity. 

N.  was  a  normal  female  child.  Her  skull  was 
badly  injured  and  her  nature  remained  unchanged 
with  the  exception  that  she  was  thereafter  dis- 
posed to  melancholy,  a  disposition  which  grew 
upon  her  until  long  after  maturity,  when,  without 
other  evidence  of  insanity,  she  committed  suicide. 

These  incidents  will  serve  to  Illustrate  a  numer- 
ous class  which  have  fallen  under  my  personal 
observation,  and,  whatever  the  prevailing  scien- 
tific opinion  may  be,  I  have  been  forced  to  the 
conclusion  that  cranial  trauma  which  does  not  im- 
mediately result  In  perceptible  Insanity  or  epilepsy, 

72 


Individual  Factors  of  Crime 

may  nevertheless  to  some  extent  impair  the  men- 
tal balance  and  at  a  remote  period  result  in 
crime. 

Among  the  criminalistic  tendencies  are  the 
strong  predilections  toward  alcoholism,  the  use  of 
narcotics,  sexual  incontinence,  the  aversion  to 
work,  and  generally  insanitary  and  unhygienic 
modes  of  life.  The  relations  of  alcoholism  and 
crime  have  been  made  the  subject  of  exhaustive  re- 
search. Dr.  MacDonald  has  catalogued  over 
400  works  upon  this  and  allied  subjects,  by  the 
scholars  of  Italy,  France,  Germany,  England  and 
the  United  States.  In  a  brochure  published  by  me 
upon  this  subject  in  19 10,  the  conclusion  was 
reached  that  alcoholism  was  quite  as  often  the  re- 
sult as  it  was  the  cause  of  morbid  physical  and 
mental  conditions,  and  subsequent  investigations 
have  not  caused  me  to  recede  from  that  position. 

Investigators  are  frequently  misled  by  the  con- 
victs themselves.  It  is  well  known  that  criminals 
who  are  victims  of  the  opium  habit  will  never  let 
the  fact  be  known  if  they  can  possibly  conceal  it, 
but  most  convicts  who  have  been  addicted  to  the 
use  of  alcoholic  drinks  in  any  degree  do  not  hesi- 
tate to  proclaim  themselves  the  victims  of  intem- 
perance. Most  criminals  who  have  used  liquor  at 
all  will  attribute  their  whole  misfortune  to  drink, 

73 


Causes  and  Cures  of  Crime 

thinking  thus  to  evade  moral  responsibility  for 
the  crime.  Thus,  one  P.  told  me  that  he  held  up  a 
street  car  and  robbed  the  conductor,  "Because  I 
had  been  drinking."  As  to  precisely  what  quantity 
of  intoxicating  liquor  must  be  consumed  in  order 
to  induce  the  robbery  of  a  street  car,  let  savants 
judge.  I  afterwards  discovered  epilepsy  and  in- 
sanity in  the  family  history  of  this  man. 

Alcoholism  is,  I  am  persuaded,  most  frequently 
itself  a  result  of  some  primary  cause  which  oc- 
casioned both  inebriety  and  crime,  and  which 
would  have  resulted  in  crime,  whether  it  produced 
inebriety  or  not.  Inebriety,  to  be  sure,  stands  out 
in  the  open,  and  may  always  be  seen;  but  the  more 
powerful,  insidious  and  hidden  elements  of  the 
criminal  diathesis,  such  as  heredity,  nerve  disease, 
cosmic  influences,  defective  training  and  vicious 
environment,  are  usually  more  diflUcult  of  appre- 
hension and  are  seldom  disclosed  excepting  upon 
the  most  thorough  and  patient  investigation.  So, 
too,  of  insanity:  The  majority  of  insane  inebri- 
ates are  inebriates  because  of  their  insanity  rather 
than  insane  because  of  their  inebriety.  Dr.  Austin 
O'Malley,  of  Philadelphia,  in  an  interesting  study 
of  this  subject  published  in  March,  19 13,  says: 
"A  man  may  be  an  alcoholic  because  he  is  pri- 
marily a  criminal,  as  well  as  a  criminal  because  he 

74 


Individual  Factors  of  Crime 

is  an  alcoholic;  yet  a  drunken  criminal  and  the 
statistician  both  are  inclined  to  make  alcoholism 
the  cause."  In  England,  Dr.  Branthwaite,  In- 
spector of  Inebriates'  Homes,  found  that  62  per 
cent  of  the  inmates  were  cases  of  mental  disease 
masked  by  alcoholic  indulgence.  Habitual  drunk- 
enness is,  in  most  cases,  as  Dr.  Branthwaite  says : 
"The  obvious  sign  of  incipient  mental  disorder." 
Subjects  so  affected  are  ready  victims  of  chronic 
alcoholism,  and  all  too  frequently  these  unfortu- 
nates reach  the  penitentiary  instead  of  an  insane 
asylum.  Dr.  Lydston,  although  believing  that  al- 
coholism is  a  prime  factor  in  crime  causation,  has 
noted  that  the  family  histories  of  dipsomaniacs 
are  largely  tinctured  with  nerve  disorder,  and  that 
hysteria,  epilepsy,  migrane,  and  even  insanity,  are 
found  all  along  the  line.  "In  such  cases,"  says  he, 
"inebriety  is  but  one  of  the  varying  phases  of  bad 
heredity.  The  degeneracy  of  nerve  structure  and 
function,  with  the  correlated  defective  will,  may 
develop  criminal  or  depraved  instincts,  as  already 
remarked."  The  bad  effects  of  alcoholic  drinks 
are  chiefly  noticeable  upon  defectives  and  adoles- 
cents and  upon  the  adolescent  races  of  men.  The 
government  of  the  United  States  has  recognized 
this  fact  in  its  dealings  with  the  Indian  tribes,  and 
has  visted  the  severest  penalties  upon  those  found 

75 


Causes  and  Cures  of  Crime 


guilty  of  selling  intoxicating  liquors  to  Indians. 
The  deleterious  ejffect  of  intoxicants  upon  the  ne- 
gro race  is  almost  equally  marked,  and  for  this 
reason,  among  others,  the  sale  of  intoxicants  has 
been  prohibited  by  state  laws  in  a  number  of  the 
Southern  states,  where  the  negro  population  is 
disproportionately  large.  In  the  United  States, 
according  to  Bosco,  only  20  per  cent  of  the  mur- 
derers are  addicted  to  alcoholic  drink.  Spain  and 
Italy,  which  are  temperate  nations,  supply  a  larger 
percentage  of  homicides  in  proportion  to  popula- 
tion than  do  England,  Belgium,  Norway  and  Ger- 
many, where  the  consumption  of  alcohol  is  great- 
est.   The  following  table  is  from  Coghlan:^ 


Consumption  of 

pure  alcohol  per 

capita  (in  gallons) 


Number  of  homi- 
cides to  each 
100,000  inhabitants 


Austria  

Spain  

Germany 

Italy    

United  Kingdom. 

Belgium 

France  


2.80 
2.85 
3.08 
3.40 
3.57 
4.00 
5.10 


25.0 
74.0 

5.7 
96.0 

5.6 
18.0 
18.0 


While  a  slight  preponderance  of  scientific  opin- 
ion may  seem  disposed  at  this  time  to  accept  the 
link  of  causality  between  drink  and  crime,  the 
authorities  are  not  in  accord  as  to  the  nature  and 
strength  of  the  alcoholic  drinks  thus  repudiated. 


'Wealth  and  Progress. 


76 


Individual  Factors  of  Crime 

Thus,  Prof.  Ferri/  opposing  the  use  of  alcoholic 
drinks,  closes  a  vigorous  refutation  of  the  theo- 
ries of  Tammeo,  Fournier,  Colajanni  and  Krum- 
mer  (who  deny  the  causal  connection  between  al- 
coholic indulgence  and  crime),  with  the  observa- 
tion that  it  was  natural  that  indirect  measures 
against  alcoholism  should  have  been  resorted  to 
long  ago,  "such  as  the  raising  of  the  tax  on  alco- 
holic drinks,  and  the  lowering  of  that  on  whole- 
some beverages,  such  as  coffee,  tea  and  beer." 
Ferri  evidently  regarded  beer  not  as  an  "alcoholic 
drink,"  but  as  a  "wholesome  beverage,"  since  he 
places  it  in  the  same  category  with  coffee  and  tea. 
The  activities  of  the  Galton  Laboratory  for 
National  Eugenics  were  recently  directed  toward 
the  problem  of  ascertaining  precisely  the  relation 
between  alcoholism  in  parents  and  the  height, 
weight,  health  and  intelligence  of  their  offspring. 
While  it  was  found  that  alcoholism  and  tubercu- 
losis maintained  a  high  degree  of  association,  the 
fact  was  also  developed  that  the  same  high  ratio 
of  tuberculosis  existed  among  the  non-drinking 
members  of  the  same  community,  and  it  was  also 
determined  that  alcoholism  in  the  parents  had  no 
effect  at  all  upon  the  height  and  weight  of  their 
children. 


*Crim.  Soc.,  p.  118,  et  seg. 

77 


Causes  and  Cures  of  Crime 

Lombroso  in  his  "Man  of  Genius"  has  called 
attention  to  the  fact  that  Byron,  Beethoven,  Avi- 
cenna,  Alexander,  and  other  men  of  genius,  were 
alcoholics,  as  were  certain  of  their  parents;  but 
this,  he  says,  is  rather  an  effect  and  complication 
of  genius  than  a  cause,  "for  these  great  and  pow- 
erful brains  need  ever  some  new  stimulant."  Edgar 
Allen  Poe,  Stephen  A.  Douglas,  Richard  Brins- 
ley  Sheridan,  Robert  Burns,  Joseph  Addison  and 
Samuel  Johnson  also  drank  to  excess.  Goethe, 
the  most  gigantic  intellect  of  his  generation,  in  his 
lifetime  consumed  fifty  thousand  bottles  of  wine. 
Three  bottles  per  day  was  the  regimen  of  Walter 
Scott.  Phillip  G.  Hammerton,  in  "The  Intellec- 
tual Life,"  declares  that  "The  poets  who  from 
age  to  age  have  sung  the  praise  of  wine  were  not 
wholly  either  deceivers  or  deceived." 

But  it  is  by  no  means  to  be  supposed  that  the 
habits  of  men  of  genius  form  a  criterion  for  the 
conduct  of  ordinary  men.  Gibbon,  the  historian, 
and  Charles  James  Fox,  the  orator  and  states- 
man, were  inveterate  gamblers.  Of  Hartley 
Coleridge  it  was  truly  said:  "He  writes  like  an 
angel  and  drinks  like  a  fish."  The  abnormality 
of  genius  (of  which  alcoholism  is  sometimes  a 
characteristic)  has  been  the  subject  of  much  con- 
troversy, but  the  better  scientific  opinion  will  sup- 

78 


Individual  Factors  of  Crime 

port  this  classification  from  MacDonald:  "Hu- 
man beings  may  be  classified,  in  general,  into 
normal  and  abnormal.  While  the  term  'abnor- 
mal' often  suggests  unethical  or  unesthetic  char- 
acteristics, it  is  not  here  so  employed.  Thus,  a 
great  reformer  and  a  great  criminal  are  both  ab- 
normal in  the  sense  of  diverging  greatly  from  the 
average  or  normal  man.  The  principal  and  ex- 
treme forms  of  human  abnormality  are  insanity, 
genius  and  crime." 

Venturi  has  made  some  interesting  investiga- 
tions into  the  subject  of  the  use  of  tobacco  among 
criminals.  He  shows  that  criminals  and  lunatics 
form  the  tobacco  habit  very  early  in  life.  While 
the  use  of  tobacco  by  adults  of  the  normal  as  well 
as  abnormal  classes  is  probably  only  a  coincident, 
and  without  effect  upon  the  moral  character  of 
the  individual,  the  effect  upon  children  and  adoles- 
cents is  highly  deleterious.  According  to  Mar- 
ambat,  who  found  that  among  603  delinquent 
children  from  8  to  15  years  of  age  51  per  cent 
had  formed  the  tobacco  habit  before  their  deten- 
tion, the  use  of  tobacco  by  a  child  leads  to  idle- 
ness, drunkenness,  and  finally  to  crime.  The  num- 
ber of  tobacco  users  among  alcoholic  convicts  was 
74  per  cent,  and  among  relapsed  criminals,  or 
recidivists,  79  per  cent  were  smokers;    89    per 

79 


Causes  and  Cures  of  Crime 

cent  of  swindlers,  beggars  and  thieves  were  found 
to  be  tobacco  users,  and,  as  well  known,  the  habit 
is  common  among  prostitutes.  But,  notwith- 
standing these  facts,  the  countries  showing  the 
highest  per  capita  consumption  of  tobacco  show 
the  lowest  rate  of  criminality. 

The  habitual  use  of  opium  obliterates  the  moral 
sense,  and  is  a  characteristic  of  a  certain  type  of 
criminal.  It  Is  an  axiom  among  prison  officials  in 
the  United  States,  that  "there  is  no  hope  for  the 
dope-fiend."  The  opium  habit  is  the  most  terri- 
ble scourge  of  the  Underworld.  I  never  knew  or 
heard  of  the  reformation  of  a  criminal  so  afflicted. 
Fortunately  the  opium  habit  is  not  general  with 
the  Caucasian  race,  although  It  numbers  among 
its  victims  a  few  like  DeQuincey  and  Madame  De 
Stael. 

Although  the  drug  makes  its  appearance  in 
every  prison,  the  convicts  of  the  Pacific  Coast 
states  show  a  greater  percentage  of  opium  victims ; 
a  condition  which  Is  due  no  doubt  to  the  large 
number  of  Asiatics  in  that  part  of  the  United 
States.  Drahms  found  fifty  per  cent  of  the  con- 
victs at  San  Quentin  to  be  opium  users.  Guimball* 
describes  the  desperate  extremities  to  which  opium 
victims  will  result  in  order  to  obtain  the  drug.  Al- 

*  Annates  d'Hygiene  Publique. 
80 


PLATE   IV.— SEXUAL  DEGENERATES. 
{Courtesy  St.  Louis  Police  Department.) 


Individual  Factors  of  Crime 

though  its  importation  is  forbidden  in  all  peni- 
tentiaries, it  finds  its  way  into  them  all,  and  con- 
victs addicted  to  its  use  will  make  any  sacrifice, 
however  costly,  and  assume  any  risk,  however 
great,  to  obtain  it. 

That  sexual  incontinence  is  a  universal  trait  of 
the  criminal  class  is  well  known.  This  is  dem- 
onstrated by  the  prevalence,  ex.  gr.,  of  syphilis 
among  convicts.  In  the  Ohio  State  prison  a  few 
years  ago  it  was  learned  that  70  per  cent  of  the 
convicts  were  afflicted  with  this  disease.  The  per- 
centage in  other  prisons  is  likewise  abnormally 
high.  Like  tattooing  and  gambling,  the  sexual 
promiscuity  of  criminals  tends  to  support  the  the- 
ory of  the  atavistic  nature  of  the  criminal  type, 
and  the  same  may  be  said  of  the  criminal's  well- 
known  aversion  to  work  and  his  insanitary  and 
unhygienic  life.  In  the  typical  criminal  we  find 
the  uncleanly  and  unwholesome  life;  impurity  in 
thought  and  deed;  the  morbid  and  the  abnormal 
in  body  and  in  mind.  In  another  class  of  crim- 
inals, all  too  common  in  the  United  States,  we 
find  the  over-taxed  body  and  mind  and  the  too 
highly  tensioned  nerve,  leaving  their  trail  of 
blood  behind;  brain-fag,  worry,  despair,  the  wreck 
of  nerves,  the  wreck  of  character,  the  wreck  of 
conscience — and  the  prison  records  tell  the  rest. 

81 


PART    II. 
PROPHYLAXIS. 


CHAPTER  IV. 

Eugenics. 

A  world-wide  impetus  was  given  by  the  First 
International  Eugenics  Congress  to  the  study  of 
eugenics.  The  congress  was  held  at  the  Univer- 
sity of  London,  England,  July  24th  to  30th,  191 2, 
but  eight  years  after  the  "new  science"  was  for- 
mally outlined  by  Francis  Galton.  Galton  de- 
fined the  subject  as  "the  study  of  agencies  under 
social  control  that  may  improve  or  impair  the 
racial  qualities  of  future  generations,  either  phys- 
ically or  mentally."  W.  E.  Kellicott,  professor 
of  biology  in  Goucher  College,  in  his  outline  of 
the  new  science,  published  in  191 1,  defines  it  as 
the  "science  of  racial  integrity  and  progress,  built 
upon  the  overlapping  fields  of  biology  and  sociol- 
ogy."   The  study  is  based,  necessarily,  upon  the 

82 


Eugenics 

theory  of  the  hereditary  transmission  of  physical, 
intellectual,  and  moral  characteristics,  a  theory 
which  has  long  been  and  is  still  the  subject  of  con- 
troversy. The  data  are  as  yet  insufficient  to  sup- 
port any  authoritative  conclusion,  excepting  as  to 
physical  traits,  but  the  theory  of  the  physical  ori- 
gin of  all  mental  and  psychic  phenomena  is  not 
without  brilliant  and  effective  support. 

The  hereditary  transmission  of  physical  traits 
has  been  thoroughly  demonstrated  as  to  the  lower 
animals,  as  well  as  in  the  vegetable  kingdom, 
making  due  allowances,  of  course,  for  variation, 
fluctuation,  mutation  and  reversion.  Lamarck 
(although  he  did  not  grasp  the  theory  of  natural 
selection  afterwards  developed  by  Darwin),  in 
the  year  1815,  in  the  introduction  to  his  "Ani- 
maux  san  Vertebres,"  enunciated  a  principle  which 
has  been  successfully  followed  in  the  breeding  of 
domesticated  animals  ever  since,  namely,  his 
"Fourth  Law,"  which  he  states  as  follows :  "Every- 
thing which  has  been  acquired,  impressed  upon,  or 
changed  in  the  organization  of  individuals  dur- 
ing the  course  of  their  life,  is  preserved  by  gene- 
ration; and  transmitted  to  the  new  individuals 
which  have  descended  from  those  which  have  un- 
dergone these  changes."  Mendel,  the  Austrian 
monk,  has  followed  with  these    discoveries,    as 

83 


Causes  and  Cures  of  Crime 

summarized  by  Castle:  "(i)  His  law  of  domi- 
nance; when,  for  example,  the  offspring  of  two 
parents  differing  in  respect  of  character  all  re- 
semble one  parent  and  possess  therefore  the  dom- 
inant character,  that  of  the  other  parent  being  la- 
tent or  recessive.  (2)  In  place  of  simple  domi- 
nance, there  may  be  manifest  in  the  immediate 
hybrid  offspring  an  intensification  of  character,  or 
a  condition  intermediate  between  the  two  parents, 
or  the  offspring  may  have  a  peculiar  character  of 
their  own.  (3)  A  segregation  of  characters 
united  in  the  hybrid  takes  place  in  their  offspring, 
so  that  a  certain  per  cent  of  these  offspring  pos- 
sess the  dominant  character  alone,  a  certain  per 
cent  the  recessive  character  alone,  while  a  certain 
per  cent  are  again  hybrid  in  nature."^ 

So  universally  are  the  principles  of  heredity  in 
animal  breeding  now  understood  and  accepted 
that  no  one  would  at  this  day  think  of  buying  a 
race  horse  without  looking  for  the  speed  record 
in  his  pedigree;  nor  a  dairy  cow  without  a  view 
to  the  milk  stock  in  her  ancestry.  The  same  prin- 
ciple applies  to  poultry.  Acting  in  obedience  to 
the  established  laws  of  heredity,  breeders  have 
developed  hens  that  are  veritable  egg-laying  ma- 
chines, cows  that  yield  a  hundred  pounds  of  but- 

^  See  Mendel's  Principles  of  Heredity,  by  Bateson. 
84 


Euffenics 

ter  per  month,  and  horses  that  out-speed  the 
wind.  Pursuing  these  laws  man  has  increased 
the  fertility  of  grain  a  hundredfold  and  multiplied 
the  variety  and  the  beauty  of  innumerable  fruits 
and  flowers. 

These  things  have  not  come  about  directly 
through  the  law  which  Darwin  called  natural  se- 
lection. They  are  the  product  of  the  hand  of 
man,  working  in  the  light  of  biological  law.  Noth- 
ing seems  impossible  to  the  breeder's  art.  An 
English  poultry  breeder  once  said  to  the  author: 
"I  can  breed  the  Stars  and  Stripes  or  the  British 
Jack  upon  the  wing  of  a  fowl  if  you  will  give  me 
time." 

Can  man  apply  these  principles  to  himself? 
Can  eugenics  ever  overcome  the  law  of  natural 
selection?  Both  questions,  I  think,  may  be  an- 
swered in  the  affirmative.  But  the  eugenist  should 
not  base  his  hopes  entirely  upon  the  "agencies 
under  social  control,"  as  Galton  seems  to  do.  As- 
suredly, we  shall  not  soon  behold  the  law-made 
man.  Public  opinion  must  always  form  in  ad- 
vance of  the  law.  In  the  march  of  human  prog- 
ress the  law  does  not  lead  the  van.  It  is  always 
in  the  rear.  Men  and  women,  through  education, 
may  employ  correct  principles  in  matrimonial  se- 
lection.   They  must  learn  to  do  so  before  the  so- 

85 


Causes  and  Cures  of  Crime 

cial  will  and  conscience,  in  this  respect,  can  be 
crystallized  into  law;  and  then  there  will  be  lit- 
tle need  to  invoke  the  legislative  functions  of  the 
state. 

But,  having  made  the  perfect  physical  man, 
will  our  task  then  be  done?  The  criminologist, 
the  sociologist,  the  student  and  the  friend  of  man, 
will  not  lose  sight  of  the  moral  and  intellectual  at- 
tributes of  the  human  species.  How  are  these 
qualities  affected  by  the  laws  of  breeding?  At  this 
point  the  analogies  drawn  from  the  breeding  of 
the  lower  animals  cannot  serve  us,  and  the  data  of 
vital  statistics  are  insufficient  to  support  a  dog- 
matic view. 

In  the  study  of  human  heredity,  the  variations 
and  fluctuations,  due  in  many  instances  to  environ- 
ment, are  perplexing,  and  we  should  always  re- 
member, with  Dugdale,  that  "The  tendency  of 
heredity  is  to  produce  an  environment  which  per- 
petuates that  heredity."  It  is  to  be  noted,  also, 
that  where  the  parent  stock  is  unable  to  control 
the  environment,  hereditary  traits  are  less  marked. 
Thus,  the  penal  colonies  of  New  Zealand  and 
Tasmania  have  bred  a  better  race  of  men,  no 
doubt,  than  could  have  been  expected  of  the  same 
stock  had  the  deported  convicts  remained  in  Eng- 
land. 

86 


Eugenics 

Lombroso  summarizes  the  investigations  of 
Marro,  Sichart,  and  Orchanski,  together  with  his 
own  observations  upon  the  physical  effects  of  he- 
redity, as  follows:  "Resemblance  to  the  father 
prevails,  but  more  in  the  case  of  boys  than  girls. 
The  same  principle  holds  true  for  structure,  al- 
though the  boys  show  more  variability.  If  one 
of  the  parents  is  diseased,  there  is  a  tendency, 
stronger  in  the  case  of  the  father,  to  transmit  the 
disease  to  children  of  the  same  sex  as  the  parent 
affected.  This  phenomena  shows  itself  especially 
in  the  case  of  neuropathic  parents,  phthisical  pa- 
rents reversing  the  relationship.  Transmission  of 
disease,  consequently,  is  progressive  with  the  fa- 
ther, regressive  with  the  mother;  the  patholog- 
ical condition  of  the  father  tends  to  repeat  itself 
in  the  children.  Morbid  heredity  depends,  then, 
upon  two  factors — the  sex  of  the  parent  and  the 
intensity  of  the  morbid  condition.  Males  inherit 
diseases  from  both  parents  and  in  greater  inten- 
sity, having  a  tendency  to  transform  functional 
disorders  into  organic  ones;  while  females  show 
the  opposite  tendency."  What  Lombroso  says  of 
resemblance  to  the  father,  however,  is  not  borne 
out  by  the  experience  of  animal  breeders,  except- 
ing where  there  is  a  want  of  prepotency  in  the 
male.     For  example,  a  prepotent   bull    is    most 

87 


Causes  and  Cures  of  Crime 

likely  to  stamp  its  characteristics  upon  the  female 
calf,  while  the  male  offspring  borrows  its  traits 
from  the  dam.  Dr.  Lydston,  too,  thinks  that  re- 
semblances are  transmitted  from  father  to 
daughter  and  from  mother  to  son.  My  own  ob- 
servations in  this  respect  do  not  support  the  con- 
clusions of  the  Italian  investigators.  Among  690 
mothers  of  Missouri  convicts  who  appeared  be- 
fore me  in  support  of  applications  for  pardon  and 
parole,  during  a  period  of  four  years,  I  observed 
that  465  had  impressed  a  strong  physical  resemb- 
lance upon  the  male  offspring.  This  tendency 
was  especially  marked  in  the  case  of  recidivists. 

As  to  the  hereditary  transmission  of  intellectual 
traits  there  is  a  wide  divergence  of  opinion.  Ribot^ 
champions  the  view  that  genius  is  hereditary,  as 
does  Francis  Galton.  The  contrary  view  is  taken 
by  N.  K.  Royse.^  Among  the  instances  of  direct 
heredity  of  genius  Lombroso  cites  the  following: 
Musicians — Bach  and  Adams;  painters — ^Van 
der  Welde,  Van  Eyck,  Murillo,  Correggio,  Tin- 
toretto; poets — Tasso,  Ariosto,  Aristophanes, 
Corneille,  Racine,  Sophocles,  Coleridge;  prose- 
writers — Dumas,  the  Cheniers,  the  Daudets;  na- 
tural   scientists — the    Plinies,    Darwin,    DeCan- 


"Heredite  Psych. 
*  Study  of  Genius. 

88 


Eu0enics 

dolle,  Hooker,  Herschel,  St.  Hilaire;  philosophers 
— the  Scaligers,  Humboldt,  Schlegel,  Grimm; 
statesmen — the  Pitts,  Wallpoles,  Peels,  Disraelis. 
Others  will  readily  occur  to  the  student. 

In  a  lecture  delivered  May  i8,  19 13,  Professor 
R.  M.  Yerkes  of  Harvard  said:  "It  is  stated  by 
the  theorists  that  since  mental  traits  are  inherit- 
able, all  that  is  needed  is  to  select  as  parents  those 
individuals  in  whom  the  desirable  traits  appear 
markedly  and  in  proper  relation  to  other  charac- 
teristics. There  is  nothing  simpler  than  to  breed 
for  intelligence.  The  difficulty  arises  from  the  fact 
that  selection  cannot  be  practiced  in  the  case  of 
man,  even  for  good  reasons,  as  it  is  practiced  by 
the  breeders  of  plants  and  domestic  animals. 
There  is,  however,  no  alternative  method  to  sug- 
gest. If  the  mind  is  to  be  improved,  it  must  be 
by  the  selection  of  the  eminently  fit  as  parents." 
This  view  is  supported  by  certain  researches  in 
England.  The  class  lists  of  Oxford  during  a  pe- 
riod of  92  years,  according  to  Schuster,  show  that 
first  honor  men  had  36  per  cent  first  or  second 
honor  fathers,  and  that  second  honor  men  had  32 
per  cent  first  or  second  honor  fathers. 

Whatever  may  be  true  as  to  inherited  mental 
traits,  the  examples  of  hereditary  moral  delin- 
quency are  striking  in  both  character  and  number. 

89 


Causes  and  Cures  of  Crime 

Ribot  has  discovered  numerous  examples  of  he- 
reditary predilection  toward  certain  forms  .  of 
vice  and  crimes.  Professor  Poellmann  of  Bonn 
traced  the  posterity  of  a  drunken  woman  during 
five  or  six  generations.  Her  progeny  numbered 
834,  of  which  the  records  of  709  were  obtained. 
All  these  were  defectives  and  degenerates  and  to 
date  had  cost  the  government  $1,206,000.  Rich- 
ard Dugdale's  "History  of  the  Juke  Family," 
probably  the  best  known  genealogy  of  crime,  dis- 
closed 1,200  of  the  progeny  of  Ada  Juke,  of 
whom  nearly  1,000  were  criminals,  and  they  had 
cost  the  state  of  New  York  $1,300,000.  Jorger 
has  worked  out  the  history  of  a  Swiss  family 
named  Zero,  during  several  generations,  the  ma- 
jority being  degenerates.  Rev.  O.  McCulloch 
traced  1,750  offspring  of  Ben  Ishmael  of  Ken- 
tucky, nearly  all  of  whom  were  degenerates  and 
criminals.  Dr.  Stocker  of  Berlin  studied  834 
progeny  of  two  sisters;  all  were  degenerates  or 
criminals.  Sichart  claims  that  twenty-five  per 
cent  of  the  German  criminals  are  of  degenerate 
ancestry,  and  Virgilis  says  that  thirty-two  per 
cent  of  Italian  criminals  are  of  degenerate  an- 
cestry. Golgi  discovered  the  hereditary  influence 
of  epilepsy  and  other  nerve  diseases  in  seventy- 
eight  per  cent  of  insane  persons. 

90 


Eugenics 

Professor  Laycock  says:  "The  line  of  hered- 
itary transmission  of  mental  and  moral  qualities 
is  as  inexorable  in  these  moral  imbeciles  as  in 
other  men,  and  adds  to  the  imbecile,  vicious  and 
degraded  part  of  the  population."  Bruce  Thomp- 
son declares:  "Intimate  and  daily  experience 
have  led  me  to  the  conviction  that  in  by  far  the 
greater  proportion  of  offences  crime  is  hereditary, 
which  tendency  is  in  most  cases  associated  with 
bodily  defect." 

Although  the  study  of  heredity  has  occupied 
many  of  the  most  brilliant  minds  of  the  last  cen- 
tury, science  has  to  this  time  been  unable  to  wholly 
dissociate  the  influence  of  environment  from  that 
of  heredity,  nor  to  determine  just  how  far  he- 
redity influences  environment.  We  know  that 
heredity  is  an  important  factor,  but  we  cannot 
from  the  data  at  hand  tell  precisely  to  what  extent 
it  will  operate  exclusive  of  those  social  and  indi- 
vidual influences  by  which  every  human  being  is 
surrounded.  Racial  development,  therefore,  can- 
not be  said  to  be  wholly  a  matter  of  animal  breed- 
ing. Dr.  S.  G.  Smith,*  Professor  of  Sociology  in 
the  University  of  Minnesota,  declares  that  "The 
materialistic  school  of  eugenists  presents  a  form 
of  scientific  fatalism  in  the    presence    of    which 

*  Medlco-Legal  News,  December,  1912. 
91 


Causes  and  Cures  of  Crime 

human  character  and  responsibility  alike  crum- 
ble." That  is  true  if  the  school  is  to  confine  itself 
wholly  to  biological  principles.  But  Galton  ap- 
parently did  not  so  intend,  nor  do  many  of  his 
followers. 

It  is  known,  and  must  be  always  borne  in  mind, 
that  the  proper  care  of  the  offspring  is  quite  as 
vital  as  the  proper  selection  of  the  parental  stock. 
Scientific  housing,  care  and  feeding  must  accom- 
pany scientific  breeding,  if  anything  but  disappoint- 
ing results  are  to  be  obtained.  None  of  these 
conditions  may  be  safely  overlooked.  All  are 
almost  equally  important.  To  recur  once  more 
to  the  analogies  supplied  by  the  breeders  of  do- 
mesticated animals,  what  would  become  of  the 
Berkshire  and  the  Poland  China,  if  all  swine  (as 
is  humorously  said  of  the  Arkansas  "razor- 
back"),  were  fed  for  speed  instead  of  for  pork? 
What  would  become  of  the  fastest  breed  of 
horses,  within  a  few  generations,  if  they  were  har- 
nessed to  the  plow?  Let  one  of  the  egg-pro- 
ducing marvels  of  the  poultry  world  be  confined 
to  a  narrow  coop,  deprived  of  exercise  and  fed 
only  upon  corn,  and  within  a  very  few  genera- 
tions her  egg  record  would  be  surpassed  by  the 
humblest  of  the  mongrel  type  of  the  barnyard. 
The  champion  Jersey  cow  of  the  world  was  Jacoba 

92 


Eugenics 

Irene,  plus  the  brains  of  her  keeper.  Dr.  C.  H. 
Eckles,  Professor  of  Dairy  Husbandry  in  the 
Missouri  Agricultural  College,  declares  that  the 
best  dairy  cow  in  the  world  may  be  quickly  ruined 
by  improper  care  and  feeding. 

Specialists  in  animal  breeding  do  not  overlook 
a  single  factor  in  the  development  of  the  partic- 
ular qualities  sought.  Eugenics  must  proceed 
along  the  same  broad  lines  if  It  Is  to  meet  the 
expectations  of  its  protagonists.  This  is  the 
stumbling  point  of  eugenics.  As  Professor  Kelll- 
cott  says,  In  his  book  previously  referred  to  (p. 
76),  "It  is  comparatively  easy  to  improve  the 
condition  of  the  individual  by  improving  his  en- 
vironing conditions  —  cleaning  him,  educating 
him,  leading  him  to  higher  Ideals  In  his  physical 
and  mental  and  moral  life.  But  as  this  Is  easy, 
so  It  is  Impermanent.  All  this  Is  modificational 
and  has  no  influence  on  the  stock.  This  Is  not  op- 
posed by  the  eugenist;  it  simply  Is  no  part  of  his 
province,  for  Its  effect  is  not  racial."  In  other 
words,  we  are  to  depend  upon  stirpiculture  alone. 
We  are  simply  to  bring  the  right  man  and  the 
right  woman  together — and  leave  the  results  to 
accident,  to  chance,  or  to  the  "Impermanent"  and 
adventitious  philanthropy  of  social  experiment. 
Karl    Pearson,    known    as    Galton's    "beak    and 

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Causes  and  Cures  of  Crime 

claws,"  boldly  states:  "Selection  of  parentage  is 
the  sole  effective  process  known  to  science  by 
which  a  race  can  continuously  progress."  A  cat- 
tle breeder  who  managed  his  herd  upon  that  prin- 
ciple would  soon  find  himself  a  bankrupt. 

In  this  inquiry  we  are  chiefly  concerned  with 
eugenics  as  a  preventive  of  crime.  If  the  appli- 
cation of  this  "new  science"  to  human  life  is  to 
give  us  better  and  stronger  men,  it  may  well  claim 
the  attention  of  the  student  of  criminal  prophy- 
laxis; for,  assuredly,  the  best  way  to  solve  the 
crime  problem  is  to  quit  making  criminals.  In  so 
far  as  hereditary  physical  and  mental  diseases 
may  be  said  to  operate  as  inducements  to  crime, 
to  that  extent,  at  least,  eugenics  appears  to  sup- 
ply a  certain  and  an  adequate  prophylactic.  But 
to  go  farther  than  that,  the  new  science  must  pro- 
ceed far  beyond  mere  matrimonial  selection.  It 
must  conserve  the  vital  forces  of  the  individual 
after  he  is  brought  into  being.  It  cannot  rest  its 
case  entirely  with  the  human  germ-plasm.  It 
must  literally  observe  all  the  laws  of  health.  It 
cannot  ignore  diet,  sanitation,  exercise,  or  rest. 
Giving  due  heed  to  all  of  these  it  may  produce 
the  structurally  perfect  man.  But  the  task  will 
then  only  be  begun.  Nature  makes  men;  but  it 
does  not  always  make  citizens.     Up  to  this  point 

94 


Eugenics 

eugenics  will  merely  have  produced  an  animal;  a 
very  beautiful,  superior  and  perfect  animal,  it  is 
true,  but  none  the  less  an  animal.  Are  we  to  thus 
be  brought  to  an  apotheosis  of  the  brute?  In  the 
words  of  Emerson,  "Man  betrays  his  relation  to 
what  is  below  him,  thick-skulled,  small  brained, 
fishy,  quadrumanous  quadruped,  ill-disguised, 
hardly  escaped  into  biped,  and  has  paid  for  the 
new  powers  by  the  loss  of  some  old  ones.  But 
the  lightning  which  explodes  and  fashions  plan- 
ets and  suns  is  in  him.  On  the  one  side,  elemental 
order,  sandstone  and  granite,  rock  ledges,  peat 
bog,  forest,  sea  and  shore;  on  the  other  part, 
thought  and  the  spirit  which  composes  and  decom- 
poses nature.  Here  they  are,  side  by  side,  god 
and  devil,  mind  and  matter,  king  and  conspirator, 
riding  peacefully  together  in  the  eye  and  brain  of 
every  man."  Having  made  him  a  beautiful  and 
perfect  animal,  is  eugenics  to  stop  at  this  point? 
Can  we  assume  that  the  healthy  thought  will  al- 
ways attend  the  healthy  body,  and  that  pure, 
clean  blood  will  make  for  the  pure  and  cleanly 
life?  We  certainly  cannot  assume  the  contrary. 
This  much  we  know:  disease — physical,  social, 
mental  and  moral  disease — is  the  diathesis  of 
crime.  Crime  may  be  found  elsewhere,  it  is  true, 
in  sporadic  cases;  but  disease  is  its  native  element. 

95 


Causes  and  Cures  of  Crime 

Circumstances  which  are  unfavorable  to  perfect 
hygienic  conditions  cannot  be  favorable  to  mental 
and  spiritual  growth.  The  genius,  of  course,  is 
frequently  found  to  be  an  exception  to  this  as 
well  as  to  all  other  rules. 

Caesar,  Napoleon,  Wellington,  Mohammed, 
Charles  V.,  and  Peter  the  Great  were  epileptics. 
Pascal,  Walter  Scott,  Swift,  Linne,  Johnson  and 
Warren  Hastings  suffered  from  paralysis.  Heine 
and  Coleridge  suffered  from  spinal  disease. 
Socrates,  Richelieu,  Descartes,  Goethe,  Cromwell, 
Rousseau,  Mozart,  Hugo,  Compte,  Swift,  John- 
son, Cowper,  Southey,  Shelley,  Byron,  Gold- 
smith, Tasso,  Chateaubriand,  Pope  and  Napoleon 
suffered  from  hallucinations,  symptomatic  of  in- 
sanity. Pope,  Byron  and  Alexander  the  Great 
suffered  from  deformities.  Milton  and  Homer 
were  blind,  and  Beethoven  was  deaf.  Most  men 
of  genius  displayed  eccentricities  which  stamped 
them  as  neurotic.  But  we  are  not  to  infer  from 
these  facts,  that  disease  is  favorable  to  the  de- 
velopment of  genius. 

As  a  matter  of  fact,  notwithstanding  the  cock- 
sureness  of  some  scientists,  we  know  very  little  of 
the  mind  of  man.  But  recently  the  world  was  as- 
tonished at  the  remarkable  intellectual  growth  of 
two  Harvard  boys,  the  children,  respectively,  of 

96 


Eugenics 

Professor  Boris  Sidls  and  Professor  Leo 
Welner,  These  two  learned  professors  explained 
that  the  great  mental  powers  of  their  children 
were  due  neither  to  heredity  nor  to  any  unusual 
circumstance  whatsoever,  but  were  simply  the  easy 
and  natural  outcome  of  certain  new  methods  of 
education.  But  who  would  hazard  the  prediction 
that  the  same  educational  methods,  applied  to  a 
number  of  children  of  the  same  parents,  would 
produce  precisely  the  same  results  in  each  case? 
Many  a  great  mind  has  arisen  under  the  old 
methods,  and  many  a  giant  intellect  has  arisen  ap- 
parently without  method  and  without  what  the 
world  calls  opportunity.  What  was  the  method 
that  gave  arms  to  Napoleon,  strategy  to  Themis- 
tocles,  or  "tipp'd  Isaiah's  lips  with  hallow'd  fire"  ? 
What  method  gave  to  Elihu  Burritt  his  fifty  lan- 
guages? Did  he  hammer  them  out  at  his  forge? 
How  do  we  account  for  William  Cullen  Bryant, 
or  Alexander  Pope?  How  explain  the  mighty 
heart  of  Lincoln?  Method  amounts  to  much,  no 
doubt;  parental  selection  is  important,  and  en- 
vironment may  vastly  help  or  harm;  but  in  the 
birth  of  a  great  intellect  and  the  shaping  of  its 
destiny,  there  is  something  far  above  and  beyond 
the  hitherto  established  powers  of  finite  mind  to 
grasp.      Blind  Milton  saw  the  gleaming  arma- 

97 


Causes  and  Cures  of  Crime 

ments  of  Heaven,  and  Beethoven,  deaf,  heard 
symphonies  that  other  minds  cannot  conceive.  Al- 
ways and  everywhere,  in  the  study  of  mind,  its  ori- 
gin and  its  powers,  we  are  face  to  face  with  the 
Unknown.  Here  we  approach  the  borderland  of 
science,  the  horizon  of  the  Unknowable,  the  twi- 
light of  the  gods,  vast  and  baffling  as  the  soul  of 
man,  where  the  laws  of  the  Infinite  hold  mystic 
sway  and  "execute  their  airy  purposes."  When 
we  know  these  laws  in  their  entirety,  we  shall 
know  the  secret  of  life  itself.  Toward  that  end 
we  have,  undeniably,  made  some  progress;  and 
science  bids  us  hope.  There  have  been  compiled 
with  great  skill  and  industry,  perhaps  a  half  dozen 
criminal  genealogies.  Studies  have  been  made  of 
small  communities  and  heterogeneous  groups, 
during  brief  periods  of  time.  From  all  this  we 
have  derived  a  mass  of  theory  and  a  modicum  of 
fact,  but,  in  point  of  actual  demonstration,  regard- 
less of  what  Darwin  says  of  rock  pigeons,  and 
whatever  Mendel  may  say  of  mice,  guinea-pigs 
and  sweet  peas,  we  are  not  far  advanced  beyond 
the  view  that, 

"We  are  such  stuff 

As  dreams  are  made  on;   and  our  little  life 
Is  rounded  with  a  sleep." 

A  century  and  a  half  after  the  Saxon  invasion 
of  England,   according  to   Bede,   the   Christian 

98 


Eugenics 

missionaries  came.  A  council  was  called  and  a 
chief  of  the  Northumbrians  arose  in  the  assem- 
bly and  said: 

"You  remember,  it  may  be,  O  king,  that  which 
sometimes  happens  in  winter,  when  you  are  seated 
at  the  table  with  your  earls  and  thanes.  Your 
fire  is  lighted  and  your  hall  is  warmed,  and  with- 
out is  rain  and  snow  and  storm.  Then  comes  a 
swallow,  flying  across  the  hall;  he  enters  by  one 
door  and  leaves  by  another.  The  brief  moment 
while  he  is  within  is  pleasant  to  him;  he  feels 
not  rain,  nor  cheerless  winter  weather,  but  the 
moment  is  brief — the  bird  flies  away  in  the 
twinkling  of  an  eye,  and  he  passes  from  winter 
to  winter.  Such,  methinks,  is  the  life  of  man  on 
earth.  It  appears  for  awhile;  but  what  is  the 
time  which  comes  after — the  time  which  was  be- 
fore? We  know  not.  If,  then,  this  new  doctrine 
may  teach  us  somewhat  of  greater  certainty,  it 
were  well  that  we  should  regard  it." 

Thus  may  we  greet  the  new  science  of  eugenics. 
If  this  new  .doctrine  may  teach  us  somewhat  of 
greater  certainty  it  were  well  indeed  that  we 
should  regard  it.  At  any  rate,  let  it  be  received 
with  an  open  mind.  The  program  of  the  eugen- 
ists,  though  still  in  the  formative  stage,  is  chiefly 
one  of  education,  and  that  is  what  the  world 
needs  most  today. 

First  in  importance  the  eugenist  places  the  mat- 

99 


Causes  and  Cures  of  Crime 

ter  of  research.  At  this  point  he  should  receive 
the  hearty  co-operation  of  all  organized  govern- 
ment. No  comprehensive  and  entirely  satisfac- 
tory system  of  vital  and  criminal  statistics  has 
been  followed  for  any  considerable  length  of 
time  in  any  part  of  the  world.  Without  such 
a  system  intelligent  research  will  be  forever  im- 
possible. The  Actuarial  Society  of  the  United 
States  and  the  American  Medical  Association 
have  for  some  years  been  conducting  a  propa- 
ganda in  aid  of  the  establishment  of  bureaus  of 
vital  statistics  in  every  state  of  the  Union,  and 
many  states  have  recently  created  such  bureaus, 
although  in  most  instances,  it  is  believed,  the 
data  called  for  are  far  less  comprehensive  than 
are  required  to  meet  the  actual  needs  of  science. 
In  the  past  two  years  the  American  Institute  of 
Criminal  Law  and  Criminology  has  been  urging 
the  creation  of  state  departments  of  criminal  sta- 
tistics, and  the  propaganda  is  meeting  with  some 
success.  Among  other  things  the  Institute  rec- 
ommends :^  ( I )  The  compilation  of  the  geneal- 
ogies of  the  institutional  charges,  including  phys- 
ical weaknesses,  diseases  to  which  the  different 
members  were  liable  and  causes  of  death.  This 
can  best  be  done  by  the    State    through    trained 

•  Proceedingrs  1912,  p.  209. 

100 


Eugenics 

field  workers  under  the  direction  and  control  of 
the  various  charitable  and  penal  organizations. 
(2)  The  establishing  of  a  chair  of  eugenics  In  the 
various  colleges  and  universities.  (3)  The  cre- 
ation and  equipment  of  at  least  one  laboratory 
for  the  study  of  mental  diseases  In  each  state ;  the 
same  to  be  located  preferably  at  the  institution 
nearest  to  a  college  or  university  having  a  medical 
school. 

The  American  Prison  Association  at  Omaha, 
in  October,  191 1,  after  referring  to  the  deplor- 
able and  chaotic  condition  of  the  sources  from 
which  our  statistical  matter  must  be  drawn, 
adopted  the  following  recommendations :  "That 
there  should  be  established  in  each  state  a  perma- 
nent board  or  bureau  of  criminal  statistics.  This 
bureau  should  be  charged  with  the  duty  of  pre- 
scribing the  forms  In  which  the  records  of  all  crim- 
inal courts,  police  boards  and  prisons  shall  be 
kept,  and  of  specifying  the  Items  regarding  which 
entries  shall  be  made.  The  law  creating  the  bu- 
reau should  direct  that  the  forms  prescribed  by  it 
should  be  uniform  as  to  all  Institutions  of  the 
same  class  to  which  they  respectively  apply,  and 
be  binding  upon  all  institutions  within  the  state. 
The  bureau  should  Issue  general  instructions  gov- 
erning the  collection  and  verification  of  the  facts 

lOI 


Causes  and  Cures  of  Crime 

to  be  stated  in  the  record;  it  should  also  be  its 
duty,  and  it  should  also  be  vested  with  the  power, 
to  inspect  and  supervise  the  records  and  to  en- 
force compliance  with  its  requirements."  At  the 
time  of  the  adoption  of  this  report,  which  was 
prepared  by  Eugene  Smith  of  New  York,  Indiana 
was  the  only  state  in  which  such  a  bureau  existed, 
and  later  reports  indicate  that  the  work  of  the  In- 
diana Bureau  has  been  in  some  measure  handi- 
capped because  of  the  failure  to  endow  it  with 
sufficient  legal  power  to  enforce  compliance  with 
its  requests. 

The  state  of  Ilhnois,  in  May,  191 2,  enacted  the 
following  statute: 

"The  State  Charities  Commission  shall  estab- 
lish a  bureau  of  criminal  statistics,  of  which  its 
executive  secretary  shall  be  the  director.  It  shall 
be  the  duty  of  said  bureau  to  collect  and  publish 
annually  the  statistics  of  Illinois  relating  to  crime, 
and  it  shall  be  the  duty  of  all  courts  of  Illinois, 
police  magistrates,  justices  of  the  peace,  clerks  of 
the  courts  of  record,  sheriffs,  keepers  of  lock-ups, 
work-shops  and  city  prisons,  or  other  places  of 
detention  holding  men,  children  or  women  under 
conviction  for  crime  or  misdemeanors  or  under 
charges  of  violations  of  the  criminal  statutes,  to 
furnish  the  said  bureau  annually  such  information 
on  request,  as  it  may  require  in  compiling  said 
statistics." 

102 


Eugenics 

Until  such  time  as  the  state  may  be  induced  to 
establish  a  separate  bureau  charged  with  the  dis- 
charge of  these  important  functions,  those  func- 
tions may,  as  in  Illinois,  be  vested  in  the  State 
Board  of  Charities,  or  the  State  Board  of  Con- 
trol (which  exists  in  some  states)  or  in  the  usual 
State  Bureau  of  Statistics.  However,  it  is  of  the 
utmost  importance  that  court  officials,  as  in  Illi- 
nois, be  required  to  furnish  the  information  de- 
sired. The  reports,  too,  should  be  furnished 
monthly  to  the  bureau,  rather  than  annually.  An- 
tecedent to  the  collection  of  statistics,  however, 
and  determining  absolutely  their  value  when  col- 
lected, is  the  system  employed  for  collecting  data. 
The  American  Institute  of  Criminal  Law  and 
Criminology  advocates  the  adoption  of  the  hered- 
ity chart  prepared  by  the  Eugenics  Record  Office 
of  Cold  Springs  Harbor,  New  York,  and  recom- 
mends a  complete  system  for  the  perservation  of 
all  psychological,  physiological  and  anthropomet- 
rical  data,  in  addition  to  the  facts  usually  found  in 
the  court  records.  Manifestly,  the  medical  ex- 
amination thus  required  should  be  made  under 
the  direction  of  competent  authority,  and  could 
not  be  left  to  the  ordinary  court  official. 

In  a  very  exhaustive  paper  upon  the  subject  of 
obligatory  psychiatric   examination   read  before 

103 


Causes  and  Cures  of  Crime 

the  Seventh  International  Congress  for  Criminal 
Anthropology  at  Cologne,  October,  191 1,  Olof 
Kinberg  of  Sweden  demonstrated  that  the  follow- 
ing benefits  would  be  derived  from  such  examina- 
tions : 

"i.  A  certain  number  of  insane  persons  will 
be  discovered,  and  given  over  to  a  special  method 
of  treatment,  and  will  accordingly  be  eliminated 
from  the  number  of  recidivists; 

"2.  An  important  number  of  psychically  ab- 
normal persons  will  be  recognized  and  can  be  dis- 
posed of  in  accordance  with  the  nature  of  their 
abnormality  and  the  degree  of  their  danger  to 
society; 

"3.  The  peril  to  society  of  those  criminals 
neither  Insane  nor  abnormal  may  be  established 
by  the  courts  much  more  accurately  than  at  pres- 
ent, and  thus  afford  a  basis  of  great  Importance 
for  the  measurement  of  punishment; 

"4.  By  the  delivery  of  all  records  to  a  central 
statistical  bureau,  there  will  come  Into  existence 
within  a  few  years  a  full  collection  of  casuistic 
materials  dealing  with  the  real  criminal  types  of 
the  country,  which  will  make  possible  a  pro- 
founder  statistical  basis  for  dealing  with  the 
problem  of  crime. 

"Finally,  In  a  theoretical  connection,  the  exam- 
ination suggested  will  deepen  our  knowledge  of 
criminal  psychology  and  provide  a  possibility  of 
demonstrating  this  knowledge;  because  it  will  be 

104 


PLATE  v.— A  GROUP  OF  BURGLARS. 
(Courtesy  St.  Louis  Police  Department  ) 


Euffenics 

based  not  on  individual  instances,  but  on  the  to- 
tality of  cases  in  a  definite  category.  In  the  prac- 
tical aspect  such  examination  means  the  sorting 
out  of  one  of  the  most  important  criminalistic  ele- 
ments, and  is  therefore  an  indispensable  premise 
— not  to  be  disregarded  at  any  price — of  a  ra- 
tional criminal  polity  based  on  natural  science 
methods." 

Whatever  may  have  been  its  effects  in  other 
parts  of  the  world,  in  the  United  States  the  study 
of  eugenics  has  given  a  tremendous  impetus  to 
the  spirit  of  investigation  into  the  causes  of  race 
development  and  deterioration.  To  this  unceas- 
ing, searching  and  patient  spirit  of  inquiry  we  may 
look  with  confidence.  In  that  spirit  lies  the  most 
rational  and  tangible  hope  of  improvement.  Be- 
fore seriously  attempting  the  solution  of  the  vast 
problem  of  degeneracy  and  crime,  we  should  first 
seek  to  understand  it.  Without  accurate  knowl- 
edge of  the  subject  in  all  its  relations  and  ramifi- 
cations no  permanent  relief  is  possible.  We  are 
in  the  habit  of  juggling  statistics  indiscriminately 
upon  the  subject  of  alcoholism,  divorce,  child  la- 
bor, social  evil,  crimes  and  punishments  of  various 
kinds,  etc.,  etc.,  when  every  unbiased  investigator 
knows  that  the  sources  of  all  our  information  are 
exceedingly  meagre  because  our  methods  of  col- 
lecting data  are  crude  if  not  chaotic.     So  long  as 

105 


Causes  and  Cures  of  Crime 

we  attack  the  problem  of  crime  prevention  without 
absolutely  accurate  knowledge  of  the  causes  which 
produce  crime,  and  without  knowing  exactly  how 
and  where  and  when  and  to  what  extent  those 
causes  operate,  our  legislative  and  executive  offi- 
cers are  proceeding  in  the  dark,  and  our  penal 
statutes  and  codes  of  criminal  procedure  are  but 
evolving  along  the  line  of  Cicero's  theory  that 
"the  best  guesser  is  the  best  prophet." 

In  addition  to  th-eir  united  efforts  to  procure  a 
better  system  of  statistics,  eugenist  scientists  are 
aiding  the  cause  of  crime  prevention  by  their 
ceaseless  and  wide  spread  warnings  against  un- 
hygienic marriages.  Great  good  is  being  accom- 
plished by  the  compilation  and  public  dissemina- 
tion of  accurate  information  concerning  the  evils 
of  marriage  between  diseased  persons  or  the  mar- 
riage of  healthy  with  diseased  individuals.  While 
it  is  probable  that  we  may  expect  little  of  the  gen- 
eral scheme  of  legislative  prevention  of  such  mis- 
matings,  no  bounds  can  be  set  to  the  good  results 
which  will  necessarily  flow  from  these  educative 
influences.  The  state  in  the  absence  of  segrega- 
tion or  sequestration  can  hardly  prevent  these  un- 
desirable sexual  unions  after  the  passion  of  love 
has  once  developed.  But  a  knowledge  of  the 
dangers  and  horrors  which  follow  in  the  wake  of 

1 06 


Eugenics 

these  unfortunate  alliances  will  In  very  many  in- 
stances prevent  courtship  and  the  Intimate  asso- 
ciations which  engender  the  passion  of  love.  The 
first  "eugenic  marriage  law"  to  be  adopted  by  any 
country  in  the  world  was  enacted  by  the  State  of 
Pennsylvania,  June  26,  1913.  The  law  prohibits 
marriage  of  the  physically  and  mentally  unfit,  and 
Is  certain  to  be  followed  by  the  enactment  of  sim- 
ilar statutes  in  other  American  States.  The  law 
Is  so  recent  that  Its  effects  cannot  become  manifest 
for  some  time,  but  Its  operation  will  be  observed 
with  interest  by  scientists  throughout  the  world. 
A  similar  statute  went  into  effect  in  North  Dakota 
July  I,  1913. 

Dr.  Alfred  Ploetz,  of  Munich,  has  organized 
the  International  Gesellchaft  fiir  Rassen-Hy- 
glene,  and  this  society  Is  not  only  collecting  and 
publishing  statistical  information  concerning  the 
problem  of  racial  Integrity,  but  Its  members  agree 
to  submit  to  medical  examination  as  to  their  phys- 
ical fitness  for  marriage  before  entering  into  the 
matrimonial  state,  and  to  refrain  from  marriage 
If  found  to  be  unfit.  On  May  25,  19 13,  the 
clergymen  of  the  Congregational,  Methodist,  Uni- 
versallst.  Unitarian  and  Baptist  churches  of  Lynn, 
Mass.,  decided  that  they  would  no  longer  marry 
couples  who  do  not  exhibit  physician's  certificates 

107 


Causes  and  Cures  of  Crime 

showing  that  both  are  physically  fit  to  be  mar- 
ried. 

It  is  questionable  how  far  state  regulation  of 
this  subject  is  effective.  Certainly  it  is  not  so  ef- 
fective as  the  deliberate  will  of  the  intelligent  in- 
dividual. In  many  states  and  nations  marriage  of 
the  feeble-minded  is  forbidden  by  law.  But  in  all 
states  and  nations  there  are  many  persons  legally 
qualified  to  perform  the  marriage  ceremony,  but 
who  are  not  mentally  qualified  to  determine  who 
are  feeble-minded  within  the  meaning  of  the  law. 
C.  H.  Reeve^  says:  "If  the  vilest  mortal  that 
lives  sees  proper  to  marry,  the  law  issues  the 
license  for  the  asking,  takes  the  fee,  makes  the 
record,  and  leaves  the  offspring  and  society  to 
shift  for  themselves  the  best  they  can.  Even 
paupers,  while  In  the  poor-house,  and  criminals, 
while  in  jail,  are  in  every  way  encouraged  and 
given  licenses  to  marry,  and  are  protected  by  the 
law.  No  thought  is  taken  for  the  unfortunate  off- 
spring, or  for  the  body  politic  or  social,  and  the 
irreparable  evils  that  must  fall  upon  all.  The 
church  adds  its  sanction,  and  its  ministers  aid  in 
making  these  civil  contracts  by  performing  a  cere- 
mony with  prayers  and  benedictions.  If  it  is  wise 
to  prohibit  polygamy,  marriage  between  relations, 

'  The  Prison  Question. 

io8 


Eugenics 

and  between  persons  whose  insanity  or  idiocy  is 
self-evident,  it  is  equally  wise  to  prohibit  it  in  all 
cases  where  evil  may  follow.  If  the  law  has  the 
power  to  prohibit  and  punish  violation  in  the  one 
case,  it  has  equal  right  in  all  others.  There  is  an 
endless  procession  of  children  from  all  these 
sources  coming  into  the  mass  of  population  to  live 
lives  of  crime,  immorality,  want,  suffering,  misfor- 
tune, and  degeneracy,  transmitting  the  taint  in 
constantly  widening  streams,  generation  after  gen- 
eration, with  the  ultimate  certainty  of  the  deteri- 
oration of  the  race  and  final  irreparable  degener- 
acy." 

But  if  these  degenerate  types  were  not  permit- 
ted to  marry  there  is  no  doubt  that  illicit  inter- 
course would  be  the  result,  and  to  congenital  de- 
generacy would  be  added  the  taint  of  illegitimacy. 
As  the  only  alternative  remedy,  then,  eugenists 
with  one  accord  are  advocating  the  enactment  of 
laws  favoring  the  sterilization  of  the  defective 
classes,  and  in  this  they  are  quite  generally  receiv- 
ing the  support  of  medical  men  and  criminologists. 

Eugenists  also  are  rendering  great  service  to 
humanity  in  directing  constant  attention  to  the 
horrors  of  war,  which  takes  from  the  world  its 
strongest  men,  and  levies  a  ceaseless  toll  upon  a 
nation's  best  resources — its    brave    and    healthy 

109 


Causes  and  Cures  of  Crime 

men.  Eugenics  is  not  wholly  concerned  with  the 
extirpation  of  the  diseased  and  unfit.  It  makes 
its  strongest  plea  for  the  propagation  of  the  good 
and  true;  for,  as  said  by  Dr.  Hall,  commenting 
upon  the  speculations  of  Galton:  "The  possibility 
of  improving  a  race  or  nation  is  thus  dependent 
upon  the  problem  of  increasing  the  fertility  of  the 
best  stock,  and  this  is  more  important  than  that  of 
repressing  the  worst."  It  has  thus  opened  a  new 
field  for  philanthropy  and  pointed  out  a  new  goal 
for  the  altruist.  There  is  no  family  of  great 
wealth  and  power,  however  sterile,  which  may 
not  increase  the  beauty  and  strength  of  the  racial 
stock  by  selecting  perfect  specimens  of  young  men 
and  women  and  assisting  them  to  the  industrial 
and  social  opportunities  which  will  enable  them 
to  properly  rear  a  family.  These  opportunities 
could  best  be  provided,  no  doubt,  by  the  remov- 
ing of  all  shackles  upon  industry  and  the  conse- 
quent broadening  of  the  field  of  opportunity;  but, 
until  such  time  as  that  condition  may  come  to 
pass,  individual  aid  may  enable  men  to  do  that 
which  under  different  economic  conditions,  per- 
haps, they  might  be  able  to  do  for  themselves. 


no 


CHAPTER  V. 

Asexualization. 

Nearly  forty  years  ago  Dr.  Gideon  Lincecum 
appeared  before  the  legislature  of  the  State  of 
Texas  and  advocated  the  asexualization  of  crim- 
inals as  a  substitute  for  capital  punishment.  His 
suggestion  was  at  first  received  with  ridicule.  It 
has  been  taken  more  seriously  with  the  passing 
years.  The  modern  eugenists,  however,  no  longer 
advocate  castration.  They  now  recommend  the 
operation  known  as  vasectomy  in  males  and 
oophorectomy  in  females,  a  surgical  operation 
first  performed  in  this  country  about  fourteen 
years  ago  (October,  1899).  Vasectomy,  which 
is  sometimes  called  "Rentoul's  operation,"  con- 
sists in  the  removal  of  a  small  part  of  each 
sperm  duct.  In  the  female  the  operation  is  per- 
formed by  removing  a  small  portion  of  each  Fal- 
lopian tube.    The  operation  is  said  by  competent 

III 


Causes  and  Cures  of  Crime 

surgical  authority  to  be  a  very  simple  one,  almost 
painless,  and  does  not  disqualify  the  patient  from 
work  for  a  single  day.  It  does  not  destroy  the 
means  of  sexual  gratification,  but  it  does  effectively 
prevent  procreation. 

Medical  opinion  is  not  yet  unanimous  as  to  the 
wisdom  of  this  operation.  Some  who  favor 
sterilization  are  disposed  to  regard  castration  as 
the  more  desirable  method,  especially  in  the  worst 
class  of  criminals,  for  the  reason  that  the  sexual 
powers  and  passions  still  remaining  after  vasec- 
tomy would  result  in  the  still  wider  dissemination 
of  venereal  diseases.  The  person  so  sterilized 
would,  In  this  sense,  be  more  dangerous  than  be- 
fore. His  sexual  passions  would  not  be  curbed, 
and  his  known  condition  of  sterility  would  afford 
him  opportunity  for  illicit  commerce  which  he 
would  in  some  instances  not  otherwise  have  pos- 
sessed, for,  as  is  well  known,  the  fear  of  possible 
fecundation,  in  some  cases,  is  all  that  withholds 
the  female  consent.  In  these  circumstances  the 
spread  of  venereal  disease  is  certainly  to  be  ex- 
pected. As  is  well  known,  syphilis  Is  itself  a  fruit- 
ful source  of  degeneracy.  It  is  a  more  wide- 
spread and  terrible  scourge  than  tuberculosis. 
Warbasse  declares  that  "At  least  one-fourth  of 
our  public  institutions  for  caring  for  defectives  is 

112 


Asexualization 

made  necessary  by  venereal  disease."  But,  what- 
ever the  trend  of  scientific  opinion,  the  trend  of 
legislative  opinion  is  all  in  the  direction  of  vasec- 
tomy. 

In  the  report  of  Branch  Committee  "D"  read 
at  the  fourth  annual  meeting  of  the  American  In- 
stitute of  Criminal  Law  and  Criminology,  the 
laws  of  the  various  American  states  which  have 
enacted  legislation  upon  this  subject,  are  summar- 
ized as  follows : 

• 

"Indiana  provides,  as  a  board  of  examiners 
who  shall  decide  upon  whom  to  operate,  two  ex- 
pert physicians  and  superintendents  and  boards  of 
managers  of  institutions  where  such  persons  are 
confined. 

"The  operation  may  be  applied  to  confirmed 
criminals,  idiots,  imbeciles  and  rapists. 

"Several  hundred  operations  have  been  done  in 
this  state. 

"Iowa  provides,  as  a  board  of  examiners  who 
shall  decide  upon  whom  to  operate,  the  managing 
officer  of  the  state  institution  where  such  persons 
are  confined,  the  members  of  the  state  board  of 
parole,  and  the  surgical  consultant  of  such  insti- 
tution. 

"The  operation  may  be  applied  to  habitual  crim- 
inals, idiots,  feeble-minded,  imbeciles,  drunkards, 
drug  fiends,  epileptics,  and  syphilitics.  The  op- 
eration applies  to  both  men  and  women. 

113 


Causes  and  Cures  of  Crime 

"New  Jersey  provides  that  the  governor  shall, 
with  the  advice  of  the  senate,  appoint  a  surgeon 
and  a  neurologist,  each  of  recognized  ability,  for 
a  five-year  period,  who,  with  the  commission  of 
charities,  and  the  superintendent  of  the  institu- 
tion shall  constitute  a  board  of  examiners  which 
shall  decide  upon  whom  to  operate. 

"The  operation  may  be  applied  to  confirmed 
criminals,  feeble-minded,  epileptics,  and  other  de- 
fectives. Only  those  who  cannot  recover  and 
where  procreation  is  not  advisable  may  be  op- 
erated upon,  and  only  after  five  days'  notice  by 
the  board  to  the  court  of  common  pleas  in  -the 
county.  It  is  lawful  for  any  conipetent  surgeon  to 
operate. 

"California  provides  that  the  superintendent  of 
a  state  hospital  for  insane,  the  superintendent  of 
a  home  for  feeble-minded,  or  the  resident  physi- 
cian of  the  state  prison,  when  in  their  opinion  it 
would  be  beneficial  and  conducive  to  the  benefit 
of  the  physical,  mental  or  moral  condition  of  any 
inmate  of  said  hospitals,  home,  or  state  prison,  to 
be  asexualized,  shall  call  the  general  superintend- 
ent of  state  hospitals  and  the  secretary  of  the 
state  board  of  health,  and  if  two  of  the  three  ex- 
aminers favor  the  operation,  it  may  be  performed 
on  inmate,  patient  or  convict. 

"Washington  provides  that,  whenever  any  per- 
son shall  be  adjudged  guilty  of  carnal  abuse  of  a 
female  person  under  the  age  of  ten  years,  or  of 
rape,  or  shall  be  adjudged  to  be  an  habitual  crim- 
inal, the  court  may,  in  addition  to  such  other  pun- 

114 


Asexualization 

ishment  or  confinement  as  may  be  imposed,  direct 
an  operation  to  be  performed  upon  such  person, 
for  the  prevention  of  procreation. 

"Connecticut  provides  that  the  directors  of  the 
state  prison  and  the  superintendents  of  the  state 
hospitals  for  the  insane  are  directed  to  appoint 
for  each  of  said  institutions,  respectively,  two 
skilled  surgeons,  who,  in  conjunction  with  the  phy- 
sicians or  surgeon  in  charge  at  each  of  said  insti- 
tutions, shall  constitute  the  board  of  examiners. 
A  majority  of  the  board  rules. 

"The  law  may  be  applied  to  both  men  and 
women  who  would  be  liable  to  produce  children 
with  an  inherited  tendency  to  crime,  insanity, 
feeble-mindedness,  idiocy  or  imbecility. 

"New  York  provides  that  the  governor  shall 
appoint  for  a  term  of  five  years  one  surgeon,  one 
neurologist,  and  one  practitioner  of  medicine,  each 
of  ten  years'  experience,  who  shall  constitute  the 
board  of  examiners. 

"The  law  applies  to  feeble-minded,  epileptics, 
criminals  and  other  defective  inmates  confined  in 
the  several  state  institutions.  Counsel  must  be  ap- 
pointed for  the  persons  to  be  operated  upon,  and 
no  operation  must  be  performed  until  five  days 
after  the  order  of  the  board  has  been  filed  with 
the  clerk  of  the  court  and  a  copy  served  upon  the 
counsel  appointed  to  represent  the  person  exam- 
ined. All  orders  made  by  the  board  are  subject 
to  review  by  the  supreme  court.  A  complete  rec- 
ord must  be  kept  by  the  institution  where  the  in- 
mate is  confined. 

"5 


Causes  and  Cures  of  Crime 

"Utah  has  also  passed  a  law  similar  to  those 
cited.  In  most  of  these  laws,  provision  is  made 
for  severe  penalties  for  those  who  perform  the 
required  operation  for  improper  purposes. 

"Governor  Sheldon,  of  Nebraska,  in  his  mes- 
sage to  the  legislature  in  1909,  recommended  the 
careful  consideration  of  the  necessity  for  passing 
a  law  to  prevent  the  marriage  of  persons  unfit  to 
propagate  and  also  a  law  for  the  sterilization  of 
defectives. 

"In  Illinois,  Pennsylvania,  Oregon,  Texas,  Wis- 
consin and  Oklahoma,  bills  have  been  introduced 
for  preventing  increase  in  defectives,  but  have 
failed  of  enactment." 

The  committee  recommended  the  following, 
which  was  offered  to  the  Legislature  of  Wisconsin 
as  a  model  statute  upon  the  subject: 

"The  state  board  of  control  is  hereby  author- 
ized to  appoint,  from  time  to  time,  one  surgeon 
and  one  alienist,  of  recognized  ability,  whose  duty 
it  shall  be,  in  conjunction  with  the  superintendents 
of  the  state  and  county  institutions,  who  have 
charge  of  criminal,  insane,  feeble-minded  and  epi- 
leptic persons,  to  examine  into  the  mental  and 
physical  condition  of  such  persons  legally  con- 
fined in  such  institutions. 

"Said  board  of  control  shall  at  such  times  as 
it  deems  advisable  submit  to  such  experts  and  the 
superintendent  of  any  of  said  institutions  the 
names  of  any  inmates  whose  mental  and  physical 
condition  they  desire  examined,  and  said  experts 

116 


Asexualization 

and  the  superintendent  of  said  institution  shall 
meet,  take  evidence  and  examine  into  the  mental 
and  physical  condition  of  such  inmates  and  report 
said  mental  and  physical  condition  to  the  said 
state  board  of  control. 

"If  such  experts  and  superintendents  unani- 
mously find  that  procreation  is  inadvisable,  it 
shall  be  lawful  to  perform  such  operation  for  the 
prevention  of  procreation  as  shall  be  decided 
safest  and  most  effective;  provided,  however,  that 
the  operation  shall  not  be  performed  except  in 
such  cases  as  are  authorized  by  the  said  board  of 
control. 

"Before  such  operation  shall  be  performed,  it 
shall  be  the  duty  of  the  state  board  of  control  to 
give  at  least  thirty  days'  notice  in  writing  to  the 
husband  or  wife,  parent  or  guardian,  if  the  same 
shall  be  known,  and  if  unknown,  to  the  person 
with  whom  such  inmate  last  resided. 

"The  record  taken  upon  the  examination  of 
every  such  inmate  shall  be  preserved  and  shall  be 
filed  in  the  office  of  said  board  of  control  at  Mad- 
ison, Wisconsin,  and  semi-annually  after  the  per- 
forming of  the  operation,  the  superintendent  of 
the  institution  wherein  such  inmate  is  legally  con- 
fined, shall  report  to  said  board  of  control  the 
condition  of  such  inmate  and  the  effect  of  such 
operation  upon  such  inmate. 

"The  state  board  of  control  shall  report  bien- 
nially in  its  regular  biennial  report  the  number  of 
operations  performed  under  the  authority  of  this 
act  and  the  result  of  such  operations." 

117 


Causes  and  Cures  of  Crime 

In  view  of  the  rapid  multiplication  of  statutes 
upon  this  subject  the  attitude  of  the  courts  is  im- 
portant. In  the  State  of  Washington  the  opera- 
tion of  vasectomy  was  attacked  as  a  "cruel  and 
unusual  punishment,"  and  the  exhaustive  opinion 
of  the  Washington  court  apparently  sets  that  ques- 
tion forever  at  rest.  The  case  is  that  of  the  State 
of  Washington  against  Peter  Feilen/  who  was 
convicted  on  September  30th,  191 1,  of  the  crime 
of  rape.  The  opinion  of  Judge  Crow,  which  fol- 
lows, is  not  only  of  great  historic  interest,  but  it 
appears  to  completely  settle  all  question  as  to  the 
constitutionality  of  these  statutes  in  the  United 
States,  and  for  that  reason  it  is  here  set  forth  in 
extenso  : 

"The  defendant  was  convicted  of  the  crime  of 
statutory  rape  committed  upon  the  person  of  a 
female  child  under  the  age  of  ten  years,  and  was 
sentenced  to  imprisonment  for  life  in  the  state  pen- 
itentiary. The  final  judgment  and  sentence  from 
which  he  has  appealed  further  ordered,  adjudged 
and  decreed  that:  'An  operation  to  be  performed 
upon  said  Peter  Feilen  for  the  prevention  of  pro- 
creation, and  the  warden  of  the  penitentiary  of 
the  state  of  Washington  is  hereby  directed  to  have 
this  order  carried  into  effect  at  the  said  peniten- 
tiary by  some  qualified  and  capable  surgeon  by  the 

1 126  Pacific  Reporter,  p.  75. 

n8 


Asexualization 

operation  known  as  vasectomy:  said  operation  to 
be  carefully  and  scientifically  performed.' 

"By  his  first  assignment,  appellant  contends  that 
the  trial  judge  erred  in  submitting  the  case  to  the 
jury,  for  the  reasons  ( i )  that  no  degree  of  pen- 
etration was  shown,  and  (2)  that  the  testimony 
of  his  victim,  the  prosecuting  witness,  was  not 
corroborated  by  such  other  evidence  as  tended  to 
convict  him  of  the  crime  charged.  We  find  no 
merit  in  these  contentions.  The  evidence  will  not 
be  discussed  or  stated  in  this  opinion,  as  no  good 
purpose  could  be  thereby  served.  We  are  con- 
vinced that,  under  the  rule  announced  in  State  v. 
Kincaid,  27  Wash.  Dec.  114,  124  Pac.  684,  the 
evidence  was  sufficient  to  comply  with  the  require- 
ments of  Rem.  &  Bal.  Code,  Section  2437.  We 
are  also  satisfied  that  the  evidence  afforded  that 
degree  and  character  of  corroboration  required 
by  Section  2155,  Rem.  &  Bal.,  and  from  all  of 
the  evidence  we  conclude  that  the  only  verdict 
that  should  have  been  returned,  was  the  one  that 
the  jury  did  return.  The  case  was  for  the  jury, 
and  their  verdict  will  not  be  disturbed. 

"Appellant  was  prosecuted  under  Rem.  &  Bal. 
Code,  Section  2436,  and  the  penalty  of  life  im- 
prisonment was  properly  imposed.  Rem.  &  Bal. 
Code,  Section  2287,  provides  that: 

"  'Whenever  any  person  shall  be  adjudged 
guilty  of  carnal  abuse  of  a  female  person  under 
the  age  of  ten  years,  or  of  rape,  or  shall  be  ad- 
judged to  be  an  habitual  criminal,  the  court  may, 
in  addition  to  such  other  punishment  or  confine- 

119 


Causes  and  Cures  of  Crime 

ment  as  may  be  Imposed,  direct  an  operation  to  be 
performed  upon  such  person,  for  the  prevention 
of  procreation.' 

"It  was  under  the  authority  of  this  section  that 
the  trial  judge  ordered  the  operation  of  vasec- 
tomy, and  appellant,  by  his  remaining  assign- 
ments, contends  that  It  Is  unconstitutional  in  that 
an  operation  for  the  prevention  of  procreation  Is 
a  cruel  punishment  prohibited  by  art.  i,  section 
14,  of  the  state  constitution,  which  directs  that 
"excessive  bail  shall  not  be  required,  excessive 
fines  Imposed,  nor  cruel  punishment  inflicted."  As 
the  statute  does  not  prescribe  any  particular  op- 
eration for  the  prevention  of  procreation,  the  trial 
judge  ordered  that  the  operation  known  as  vasec- 
tomy be  carefully  and  skillfully  performed.  The 
question  then  presented  for  our  consideration  is 
whether  the  operation  of  vasectomy,  carefully  and 
skillfully  performed,  must  be  judicially  declared 
a  cruel  punishment  forbidden  by  the  constitution. 
No  showing  has  been  made  to  the  effect  that  it 
will  In  fact  subject  appellant  to  any  marked  de- 
gree of  physical  torture,  suffering  or  pain.  That 
question  was  doubtless  considered  and  passed 
upon  by  the  legislature  when  it  enacted  the  stat- 
ute. Appellant  further  contends  that  the  imposi- 
tion of  the  alleged  cruel  punishment  as  a  part  of 
the  sentence  necessitates  a  reversal  of  the  judg- 
ment. This  would  not  be  true,  even  though  we 
were  to  hold  the  operation  to  be  an  infliction  of 
cruel  punishment,  as  the  judgment  of  conviction 
would  have  to  be  affirmed  with  directions  to  en- 


Asexualization 

force  the  penalty  of  life  imprisonment.  When  a 
sentence  is  legal  in  one  part  and  illegal  in  another, 
it  is  not  open  to  controversy  that  the  illegal,  if 
separable,  may  be  disregarded  and  the  legal  en- 
forced. United  States  v.  Pridgeon,  153  U.  S.  48  ; 
State  V.  Williams,  77  Mo.  310,  313. 

"The  crime  of  which  appellant  has  been  con- 
victed is  brutal,  heinous  and  revolting,  and  one 
for  which,  if  the  legislature  so  determined,  the 
death  penalty  might  be  inflicted  without  infringe- 
ment of  any  constitutional  inhibition.  It  is  a  crime 
for  which,  in  some  jurisdictions,  the  death  pen- 
alty has  been  imposed.  33  Cyc.  1518.  If  for  such 
a  crime  death  would  not  be  held  a  cruel  punish- 
ment, then  certainly  any  penalty  less  than  death, 
devoid  of  physical  torture,  might  also  be  inflicted. 
In  the  matter  of  penalties  for  criminal  offenses 
the  rule  is  that  the  discretion  of  the  legislature 
will  not  be  disturbed  by  the  courts  except  in  ex- 
treme cases. 

"  'It  would  be  an  interference  with  matters  left 
by  the  constitution  to  the  legislative  department 
of  the  government,  for  us  to  undertake  to  weigh 
the  propriety  of  this  or  that  penalty  fixed  by  the 
legislature  for  specific  offenses.  So  long  as  they 
do  not  provide  cruel  and  unusual  punishments 
such  as  disgraced  the  civilization  of  former  ages, 
and  make  one  shudder  with  horror  to  read  of 
them,  as  drawing,  quartering,  burning,  etc.,  the 
constitution  does  not  put  any  limit  upon  legislative 
discretion.'  Whitten  v.  State,  47  Ga.  297. 

"On  the  theory  that  modern  scientific  investi- 
121 


Causes  and  Cures  of  Crime 

gation  shows  that  idiocy,  insanity,  imbecility,  and 
criminality  are  congenital  and  hereditary,  the  leg- 
islatures of  California,  Connecticut,  Indiana, 
Iowa,  New  Jersey,  and  perhaps  other  states,  in 
the  exercise  of  the  police  power,  have  enacted 
laws  providing  for  the  sterilization  of  idiots,  in- 
sane, imbeciles,  and  habitual  criminals.  In  the 
enforcement  of  these  statutes  vasectomy  seems  to 
be  a  common  operation.  Dr.  Clark  Bell,  in  an 
article  on  hereditary  criminality  and  the  asexuali- 
zation of  criminals,  found  at  page  134,  vol.  27, 
Medico-Legal  Journal,  quotes  with  approval  the 
following  language  from  an  article  contributed 
to  Pearson's  Magazine  for  November,  1909,  by 
Warren  W.  Foster,  senior  judge  of  the  court  of 
general  sessions  of  the  peace  of  the  county  of 
New  York: 

"  'Vasectomy  is  known  to  the  medical  profes- 
sion as  "an  office  operation"  painlessly  performed 
in  a  few  minutes,  under  an  anaesthetic  (cocaine) 
through  a  skin  cut  half  an  inch  long,  and  entailing 
no  wound  infection,  and  no  confinement  to  bed. 
"It  is  less  serious  than  the  extraction  of  a  tooth," 
to  quote  from  Dr.  William  D.  Belfield,  of  Chi- 
cago, one  of  the  pioneers  in  the  movement  for  the 
sterilization  of  criminals  by  vasectomy,  an  opinion 
that  finds  ample  corroboration  among  practition- 
ers. .  .  .  There  appears  to  be  a  wonderful 
unanimity  in  favor  of  the  prevention  of  their  fu- 
ture propagation.  The  Journal  of  the  American 
Medical  Association  recommends  it,  as  does  the 
Chicago  Physicians'  Club,  the  Southern  District 

122 


Asexualization 

Medical  Society,  and  the  Chicago  Society  of  So- 
cial Hygiene.  The  Chicago  Evening  Post,  speak- 
ing of  the  Indiana  law,  says  that  it  is  one  of  the 
most  important  reforms  before  the  people,  that 
"rarely  has  a  big  thing  come  with  so  little  fanfare 
of  the  trumpets."  The  Chicago  Tribune  says  that 
"the  sterilization  of  defectives  and  habitual  crim- 
inals is  a  measure  of  social  economy."  The  sterili- 
zation of  convicts  by  vasectomy  was  actually  per- 
formed for  the  first  time  in  this  country,  so  far 
as  is  known,  in  October,  1899,  by  Dr.  H.  C.  Sharp, 
of  Indianapolis,  then  physician  to  the  Indiana 
State  Reformatory  at  Jeffersonville,  though  the 
value  of  the  operation  for  healing  purposes  had 
long  been  known.  He  continued  to  perform  this 
operation  with  the  consent  of  the  convict  (not  by 
legislative  authority)  for  some  years.  Influen- 
tial physicians  heard  of  his  work  and  were  so  fa- 
vorably impressed  with  it  that  they  endorsed  the 
movement  which  resulted  in  the  passage  of  the 
law  now  upon  the  Indiana  statute  books.  Dr. 
Sharp  has  this  to  say  of  this  method  of  relief  to 
society:  "Vasectomy  consists  of  ligating  and  re- 
secting a  small  portion  of  the  vas  deferens.  The 
operation  is  indeed  very  simple  and  easy  to  per- 
form ;  I  do  it  without  administering  an  anaesthetic, 
either  general  or  local.  It  requires  about  three 
minutes'  time  to  perform  the  operation  and  the 
subject  returns  to  his  work  immediately,  suffers 
no  inconvenience,  and  is  in  no  way  impaired  for 
his  pursuit  of  life,  liberty  and  happiness,  but  is 
effectively  sterilized."  ' 

123 


Causes  and  Cures  of  Crime 

"Must  the  operation  of  vasectomy  thus  ap- 
proved by  eminent  scientific  and  legal  writers,  be 
necessarily  held  a  cruel  punishment  under  our 
constitutional  restriction  when  applied  to  one 
guilty  of  the  crime  of  which  appellant  has  been 
convicted?  Cruel  punishments,  in  contemplation 
of  such  constitutional  restriction,  have  been  re- 
peatedly discussed  and  defined,  although  we  have 
not  been  cited  to,  nor  have  we  been  able  to  find, 
any  case  in  which  the  operation  of  vasectomy  has 
been  discussed.  In  State  v.  Woodward,  68  W. 
Va.  66y  69  S.  E.  385,  a  recent  and  well-considered 
case  which  may  be  consulted  with  much  profit, 
Brannon,  Justice,  said: 

"'Thelegislature  is  clothedwith  power  well  nigh 
unlimited  to  define  crimes  and  fix  their  punish- 
ments. So  its  enactments  do  not  deprive  of  life, 
liberty  or  property  without  due  process  of  law  and 
the  judgment  of  a  man's  peers,  its  will  is  absolute. 
It  can  take  life,  it  can  take  liberty,  it  can  take 
property,  for  crime.  "The  legislatures  of  the  dif- 
ferent states  have  the  inherent  power  to  prohibit 
and  punish  any  act  as  a  crime  provided  they  do  not 
violate  the  restrictions  of  the  state  and  federal 
constitutions;  and  the  courts  cannot  look  further 
into  the  propriety  of  a  penal  statute  than  to  as- 
certain whether  the  legislature  had  the  power  to 
enact  it."  12  Cyc.  136.  "The  power  of  the  leg- 
islature to  impose  fines  and  penalties  for  a  viola- 
tion of  its  statutory  requirements  is  coeval  with 
fovernment."  Mo.  P.  R.  R.  Co.  v.  Humes ^  115 
J.  S.  512.    The  legislature  is  ordinarily  the  judge 

124 


Asexualization 

of  the  expediency  of  creating  new  crimes,  and  of 
prescribing  penalties,  whether  light  or  severe. 
Commonwealth  v.  Murphy,  165  Mass.  66, 
Southern  Express  Co.  v.  Commonwealth,  92  Va. 
66.  For  such  a  fundamental  proportion  I  need 
cite  no  further  authority.  .  .  .  What  is  meant 
by  the  provision  against  cruel  and  unusual  pun- 
ishment? It  is  hard  to  say  definitely.  Here  is 
something  prohibited,  and  in  order  to  say  what 
this  is  we  must  revert  to  the  past  to  ascertain 
what  is  the  evil  to  be  remedied.  Within  the  pale 
of  due  process  the  legislature  has  power  to  define 
crimes  and  fix  punishments,  great  though  they 
may  be,  limited  only  by  the  provision  that  they 
shall  not  be  cruel  or  unusual  or  disproportionate 
to  the  character  of  the  offense.  Going  back  to 
ascertain  what  was  intended  by  this  constitutional 
provision  the  history  of  the  law  tells  us  of  the  ter- 
rible punishment  visited  by  the  ancient  law  upon 
convict  criminals.  In  our  days  of  advanced  Chris- 
tianity and  civilization  this  review  is  most  inter- 
esting yet  shocking  and  heart-rending.'  " 

The  learned  jurist  then  proceeds  with  the  nar- 
ration of  the  cruel  punishments  mentioned  in  4 
Blackstone,  at  pages  92,  327  and  377,  and  after 
citing  and  discussing  the  English  Bill  of  Rights; 
fVhitten  v.  State,  47  Ga.  301;  Aldridge  Case,  2 
Va.  Cases,  477;  Wyatt's  Case,  6  Rand  694;  In  re 
Kemmler,  136  U.  S.  436,  446;  Wilkerson  v.  Utah, 
99  U.  S.  130,  135  ;  Cooley,  Const.  Lim.  (4th  ed.) . 

125 


Causes  and  Cures  of  Crime 

408;  Wharton,  Crim.  Law  (7th  ed.),  Section 
3405;  Hohhs  V.  State,  133  Ind.  404,  32  N.  E. 
1019,  18  L.  R.  A.  774;  State  v.  Williams,  77 
Mo.  310;  JVeems  v.  United  States,  217  U.  S. 
349;  O'Neil  V.  Vermont,  144  U.  S.  323;  and 
other  cases  says : 

"  'In  short  the  text  writers  and  cases  say  that 
the  clause  is  aimed  at  those  ancient  punishments, 
those  horrible,  inhuman,  barbarous  mflictions.' 

"In  re  O'Shea,  11  Cal.  App.  568,  105  Pac.  777, 
the  California  court  of  appeals  for  the  first  dis- 
trict said: 

"  'Cruel  and  unusual  punishments  are  punish- 
ments of  a  barbarous  character  and  unknown  to 
the  common  law.  The  word,  when  it  first  found 
place  in  the  Bill  of  Rights,  meant  not  a  fine  or  im- 
prisonment, or  both,  but  such  punishment  as  that 
inflicted  by  the  whipping  post,  the  pillory,  burn- 
ing at  the  stake,  breaking  on  the  wheel,  and  the 
like;  or  quartering  the  culprit,  cutting  off  his  nose, 
ears  or  limbs,  or  strangling  him  to  death.  It  was 
such  severe,  cruel  and  unusual  punishments  as  dis- 
graced the  civilization  of  former  ages  and  made 
one  shudder  with  horror  to  read  of  them.  Cooley 
on  Constitutional  Limitations  (7th  ed.),  p.  471, 
et  seq.;  State  v.  McCauley,  15  Cal.  429;  tVhitten 
V.  State,  133  Ind.  404,  93  N.  E.  1019;  State  v. 
Williams,  77  Mo.  310.  "The  legislature  is  ordi- 
narily the  judge  of  the  expediency  of  creating  new 
crimes,  and  prescribing  the  punishment,  whether 

126 


Asexualization 

light  or  severe."  Commonwealth  v.  Murphy,  i6'j 
Mass.  66,  42  N.  E.  504,  52  Am.  St.  Rep.  496,  30 
L.  R.  A.  734;  Southern  Express  Co.  v.  Com.,  92 
Va.  59,  22  S.  E.  809,  41  L.  R.  A.  436.' 

"Guided  by  the  rule  that,  in  the  matter  of  pen- 
alties for  criminal  offenses,  the  courts  will  not  dis- 
turb the  discretion  of  the  legislature  save  in  ex- 
treme cases,  we  cannot  hold  that  vasectomy  is 
such  a  cruel  punishment  as  cannot  be  inflicted  upon 
appellant  for  the  horrible  and  brutal  crime  of 
which  he  has  been  convicted. 

"The  judgment  is  affirmed,  Parker,  Chadwick, 
and  Gose,  JJ.,  concur." 

The  above  is  the  first  case  to  reach  the  Supreme 
Court  of  any  American  State  upon  the  subject  of 
vasectomy.  Under  the  authorities  cited  there 
would  seem  to  be  no  doubt  that  this  opinion  will 
meet  with  the  approval  of  the  Supreme  Court  of 
the  United  States,  should  the  question  ever  come 
before  that  tribunal,  so  long  as  the  operation  is 
performed  only  as  a  punishment  for  crime.  An- 
other question  is  presented,  however,  when  the 
operation  is  performed  upon  those  who  are  not 
convicted  of  crime,  although  it  is  probable  that 
under  the  general  police  powers  of  the  States  as 
defined  by  the  American  courts,  the  operation  of 
vasectomy  in  such  cases  could  be  justified  upon  the 
theory  of  benefits  accruing  to  the  public  health. 
The  Supreme  Court  of  the  United  States,    how- 

127 


Causes  and  Cures  of  Crime 

ever,  does  not  take  cognizance  of  cases  arising 
under  State  laws  where  the  question  of  "cruel  and 
unusual  punishments"  is  raised.  It  has  been  held, 
in  a  long  line  of  decisions,  that  the  provision  of 
the  federal  constitution  inhibiting  such  punish- 
ments applies  only  to  the  laws  made  by  the  federal 
Congress.  Where  State  laws  prescribe  such  pun- 
ishments, the  construction  given  by  the  State's 
highest  court  is  final. 

Vasectomy  has  lately  been  a  subject  of  theolog- 
ical discussion  and  during  the  past  year  an  interest- 
ing debate  has  been  waged  among  theologians  in 
the  pages  of  the  American  Ecclesiastical  Review. 
Among  these  theologians  the  general  opinion  is 
inclined  to  question  the  lawfulness  of  vasectomy, 
and  among  those  who  champion  that  view  are 
Mgr.  De  Becker,  J.  U.  D.,  of  the  University  of 
Louvain,  and  Fathers  Ver  Meersch,  Villers,  and 
Salsmans,  of  the  Jesuit  College  of  the  same  city. 
The  arguments  against  vasectomy,  however,  ap- 
pear in  some  instances  to  be  directed  primarily 
against  castration.  It  would  be  a  more  effective 
preventive  of  crime  and  degeneracy,  no  doubt,  if 
it  did  produce  precisely  the  same  results  as  those 
which  follow  castration.  That  would  destroy 
the  tendency  to  sexual  promiscuity  and  the  conse- 
quent spread  of  syphilis,  whereas  vasectomy  does 

128 


PLATE    VI. — TYPICAL    THIEVES. 
(Courtesy  St.  Louit  Police  Department.) 


..."> 


Asexualization 

not.  In  some  cases  asexualization,  therefore, 
would  appear  to  be  the  only  efficient  remedy,  but 
I  gravely  doubt  whether,  under  our  constitution, 
asexualization  would  be  lawful  excepting  as  a  pun- 
ishment for  crime.  Certainly  so  serious  and  per- 
manent a  mutilation  as  castration  should  not  be 
lightly  or  frivolously  inflicted,  if  at  all.  A  pun- 
ishment which  places  the  victim  in  a  condition 
from  which  he  can  never  be  relieved  should  be  vis- 
ited upon  few,  and  that,  too,  only  upon  judicial 
determination  and  with  greatest  hesitancy.  The 
world  has  had  some  experience  in  a  darker  and 
less  enlightened  age  with  the  theory  of  statutory 
determination  of  the  fitness  of  human  beings  to 
enjoy  the  right  to  life.  The  committee  of  Ephors, 
which  sat  in  ancient  Sparta  and  pronounced  judg- 
ment unhesitatingly  upon  infants  who  were  weak 
or  deformed,  had  ample  scope  for  the  exercise  of 
its  powers,  but  civilization  has  not  been  greatly 
the  gainer  thereby.  True  enough,  they  had  not 
the  advantages  of  the  scientific  knowledge  which 
we  enjoy  today.  But,  on  the  other  hand,  the  pass- 
ing of  the  years  may  bring  new  knowledge  in  the 
future,  so  that  our  methods  of  today  may  to  the 
future  observer  and  historian  appear  as  crude  and 
unscientific  as  those  methods  which  sent  the  Spar- 
tan babes  to  death. 

129 


CHAPTER  VI. 
Education. 

Seventy-five  years  ago  Dr.  Francis  Lieber,  the 
first  person  to  apply  himself  seriously  and  effec- 
tively to  the  study  of  crime  in  the  United  States, 
declared  in  his  "Political  Ethics"  that  all  his  in- 
vestigations had  led  him  to  the  conclusion  that 
crime  is  very  much  due  to  the  want  of  fixed  occu- 
pations. At  that  time  he  found  but  one  in  seven 
convicts  who  had  a  trade,  and  this  led  him  to  fa- 
vor trade  education  as  a  preventive  of  crime. 

Two  centuries  ago  Milton  and  Locke,  in  Eng- 
land, were  urging  the  connection  of  physical  and 
mental  education;  while  John  Ackermann,  Salz- 
mann  and  Franke  took  the  lead  in  this  movement 
in  Germany,  as  Tissot,  Rousseau  and  Lond  have 
done  in  France. 

At  the  close  of  the  eighteenth  century  Dr.  Rush, 
of  Philadelphia,  recommended  the  connecting  of 

130 


Education 

agricultural  and  mechanical  labor  with  literary 
institutions,  saying  "The  student  should  work  with 
his  own  hands  in  the  intervals  of  study."  The 
people  of  Pennsylvania  took  the  lead  in  this  mat- 
ter, and  the  Manual  Labor  Academy  was  opened, 
near  Philadelphia,  in  1829.  This  was  the  origin 
of  industrial  education  in  the  United  States.  The 
next  year  it  was  reported  that  every  invalid  stu- 
dent who  attended  the  Manual  Labor  Academy 
was  restored  to  health. 

The  Pennsylvania  legislature  became  interested, 
and  in  1832  directed  a  committee  of  the  House 
of  Representatives  to  investigate  the  expediency 
of  establishing  a  State  manual  labor  academy  for 
the  instruction  of  teachers  in  public  schools.  The 
report  of  that  committee  is  the  first  of  its  kind 
in  American  legislative  history,  and  the  conclu- 
sions reached  so  well  support  the  modern  theory 
of  industrial  training,  that,  to  the  student  of  this 
subject,  they  are  of  more  than  merely  historic  in- 
terest.   This  committee  found: 

1.  That  the  expense  of  Education,  when  con- 
nected with  manual  labor  judiciously  directed, 
may  be  reduced  at  least  one-half. 

2.  That  the  exercise  of  about  three  hours' 
labor  daily,  contributes  to  the  health  and  cheer- 
fulness of  the  pupil,  by  strengthening  and  improv- 

131 


Causes  and  Cures  of  Crime 

ing  the  physical  powers  and  by  engaging  his  mind 
In  useful  pursuits. 

3.  That  so  far  from  manual  labor  being  an 
Impediment  in  the  progress  of  the  pupil  in  intel- 
lectual studies,  it  has  been  found,  that  in  propor- 
tion as  one  pupil  has  excelled  the  other  in  the 
amount  of  labor  performed,  the  same  pupil  has 
excelled  the  other  in  equal  ratio  in  his  intellectual 
studies. 

4.  That  manual  labor  institutions  tend  to 
break  down  the  distinction  between  rich  and  poor, 
which  exists  In  society.  Inasmuch  as  they  give  an 
almost  equal  opportunity  of  Education  to  the 
poor  by  labor  as  Is  afforded  to  the  rich  by  the 
possession  of  wealth;  and 

5.  That  pupils  trained  that  way  are  much  bet- 
ter fitted  for  active  life,  and  better  qualified  to 
act  as  useful  citizens  than  when  educated  in  any 
other  mode ;  that  they  are  better  as  regards  phys- 
ical energy  and  better  intellectually  and  morally. 

Proceeding  upon  these  principles  the  trade 
school  has  arisen  and  spread  throughout  the 
Union,  slowly,  indeed,  and  by  no  means  with  the 
sweeping  enthusiasm  of  a  great  idea,  but  by  de- 
grees It  has  grown  and  will  grow. 

"In  order  that  the  school  may  be  useful,"  writes 
Lombroso,  "not  negatively  as  now,  but  positively, 

132 


Education 

we  must  change  the  basis  of  our  education,  which 
at  present,  by  its  admiration  of  beauty  and  force, 
leads  to  idleness  and  violence.  We  must  place 
in  the  first  rank  special  schools  for  agriculture; 
and  in  the  other  schools  we  must  give  first  place 
to  manual  work,  in  this  way  substituting  some- 
thing practical  and  exact  for  the  nebulous  mirages 
of  the  antique." 

G.  Stanley  Hall  says  that  of  all  work-schools 
a  good  farm  is  probably  the  best  for  motor  de- 
velopment. He  comments,  also,  upon  the  morally 
healthful  nature  of  rural  pursuits. 

"Up  to  the  present,"  writes  Sergi,  "the  school 
has  debated  upon  the  best  way  to  teach  the  alpha- 
bet, how  it  is  possible  to  learn  to  write  soonest, 
and  what  is  the  best  method  of  developing  the  in- 
telligence ;  but  it  does  not  teach  us  any  method  of 
directing  our  feelings  and  impulses.  ...  In 
place  of  increasing  the  number  of  classical  schools, 
reduce  them  to  the  minimum,  and  transform  all 
the  others  into  schools  of  business,  arts,  and 
trades,  professional  and  practical  schools  corres- 
ponding to  the  demands  of  modern  life.  Intro- 
duce into  these  schools  the  cultivation  of  the  in- 
telligence and  character  needed  for  daily  life;  by 
these  means  you  will  cultivate  the  habit  of  work- 
ing, which  is  in  itself  a  very  efficacious  education. 

133 


Causes  and  Cures  of  Crime 

When  we  have  numerous  schools  of  arts  and 
trades,  manual  labor  will  be  ennobled,  whereas 
now  anyone  who  wants  to  learn  a  trade  must  serve 
under  a  master-workman,  and  learns  it  by  prac- 
tice more  or  less  badly. 

Ferri  thinks  that  an  important  and  effective 
crime  preventive  would  be  the  experimental 
method  in  the  teaching  of  children,  which  applies 
the  laws  of  physio-psychology,  according  to  the 
physical  and  moral  type  of  each  pupil  and  that 
"by  giving  him  less  of  archaeology,  and  more 
knowledge  serviceable  in  actual  life,  by  the  men- 
tal discipline  of  the  natural  sciences,  which  alone 
can  develop  in  him  a  sense  of  the  actual,  such  as 
our  classical  schools  only  enfeeble,"  we  could  the 
better  adapt  men  for  the  struggle  of  existence, 
whilst  diminishing  the  number  of  those  left  with- 
out occupation.  "Many  of  the  causes  of  crime 
would  be  nipped  in  the  bud,"  says  he,  "by  check- 
ing degeneration  through  physical  education  of 
the  young."^ 

The  effect  of  the  trades  and  of  the  practice  of 
the  useful  arts  is  in  all  instances  beneficial  and 
without  doubt  is  a  most  potent  element  in  crime 
prevention.  There  are  but  three  modes  of  gain- 
ing a  livelihood,  although  they  are  masked  under 

» See  Ferri :    Grim.  Soc,  p.  131. 


Education 

many  disguises.  They  are  labor,  beggary  and 
theft. 

The  first  thing  the  Almighty  said  to  Adam 
when  he  turned  our  first  parent  out  of  the  Gar- 
den, was  "Go  to  work!"  And,  from  that  day  to 
this,  the  man  who  has  usually-kept  out  of  serious 
trouble  has  been  the  man  who  found  his  work 
and  stayed  with  it.  Some  persons,  to  be  sure, 
have  called  this  condition  a  curse.  "Wage- 
slavery" — I  believe  that's  the  term — has  also 
been  placed  in  the  same  category.  But  for  just 
this  "curse,"  however,  humanity  would  still  be 
wearing  fig-leaves  and  subsisting  upon  a  diet  of 
bread  fruit  and  bananas. 

Nearly  three-fourths  of  the  persons  found  in 
our  penitentiaries  are  persons  unable  to  earn  a 
living  excepting  at  the  most  rudimentary  form  of 
labor,  whose  means  of  livelihood  are  limited  to 
the  most  primitive  methods,  and  whose  earning 
capacity  is  at  the  lowest  possible  stage.  We  find, 
therefore,  the  maximum  of  dishonesty  with  the 
minimum  of  earning  power.  In  other  words,  men 
who  are  not  especially  skilled  in  the  arts  and  proc- 
esses of  trade,  and  who  are  wholly  untrained  as 
to  honorable  and  profitable  occupations,  are  most 
likely  to  try  to  gain  a  living  by  unlawfully  taking 
the  property  of  others.    Not  knowing  how  to  get 

135 


Causes  and  Cures  of  Crime 

a  living  honestly,  they  very  naturally  try  to  get  it 
dishonestly. 

But  those  persons  who  have  been  instructed  in 
honorable  and  profitable  methods  of  making  a  liv- 
ing do  not  usually  resort  to  the  dishonorable  and 
unprofitable  methods  which  characterize  the 
criminal.  The  majority  of  the  crimes  committed 
in  this  country  are  crimes  against  property,  and 
most  criminals,  therefore,  are,  in  one  sense  or  an- 
other, thieves.  There  are  exceptions,  of  course; 
but  as  a  general  proposition,  they  steal  who  have 
not  learned  to  work.  There  is,  indeed,  no  single 
fact  which  stands  out  more  conspicuously  in  the 
whole  range  of  our  criminal  statistics,  than  the 
very  evident  one  that  the  vast  majority  of  men 
who  really  know  how  to  make  a  living  honestly 
do  not  usually  attempt  to  make  it  in  any  other 
way;  whereas  they  who  do  not  know  how  to  make 
a  living  at  all,  are,  generally  speaking,  utterly  ir- 
responsible, and,  upon  the  whole,  dangerous,  for 
their  living  is  at  best  unremunerative  and  precari- 
ous, and  they  are  most  easily  reduced  to  distress 
by  any  disturbance  of  business  or  social  conditions. 

Most  criminals  are  young  men,  not  out  of  their 
"twenties."  The  age  of  greatest  criminality  in 
this  country,  I  believe,  is  somewhere  about  the 
age  of  twenty-three.     Bring  a  boy    to    maturity 

136 


\:f 


PLATE   VII.— GROUP  OP   FORGERS. 
{Courtesy  St.  Louis  Police  Department.) 


Education 

without  effective  knowledge  of  useful  work,  and 
you  will  place  him  in  a  class  which,  as  the  prison 
records  indicate,  is  the  most  likely  to  commit 
crime,  and  you  have  brought  him  to  the  age  when 
most  men  who  do  become  criminals  develop  the 
criminalistic  impulse.  Thus  you  assure  for  that 
boy  a  double  probability  of  moral  delinquency 
and  industrial  failure. 

"Is  the  young  man  Absalom  safe?"  Well  may 
King  David's  anxious  question  be  echoed  in  the 
public  mind  today;  for,  upon  the  safety  of  our 
"young  man  Absalom"  depends  the  ultimate 
safety  of  us  all.  General  Grant  once  said  that 
what  saved  the  Union  was  the  coming  forward 
of  the  young  men.  And  the  salvation  of  the 
Union  still  depends  upon  the  coming  forward  of 
the  young  men.  The  waywardness  of  this  "young 
man  Absalom"  alone,  to  say  nothing  of  that  of 
his  elder  brothers  in  crime,  is  now  costing  us  not 
less  than  one  hundred  and  fifty  millions  per  an- 
num, and  the  total  per  capita  cost  of  crime  in  the 
United  States  is  greater  than  the  per  capita  cost 
of  education.  This  tremendous  disparity  sug- 
gests a  rather  humorous  incident  which  occurred 
in  one  of  John  Morley's  political  campaigns  in 
Scotland.  Wilson,  his  opponent,  was  making  a 
speech,  when  he  was  rather  suddenly  nonplussed 

137 


Causes  and  Cures  of  Crime 

by  this  question  from  the  crowd:  "Is  Maister 
Wilson  in  favor  of  spending  thirty-six  millions  a 
year  on  the  army  and  navy,  an'  on'y  twelve  mil- 
lions a  year  on  education — that  is  to  say,  twelve 
millions  for  pittin'  brains  in,  and  thirty-six  millions 
for  blawin'  'em  oot?"  So  long  as  we  continue  to 
expend  more  money  in  getting  men  into  the  pen- 
itentiary than  we  do  in  trying  to  keep  them  out, 
we  cannot  reasonably  expect  any  substantial  de- 
crease in  crime,  and  therefore  the  heaviest  drain 
upon  our  national  resources  will  continue  una- 
bated. Only  about  one-fourth  of  our  penitentiary 
convicts  are  illiterates.  Three-fourths  of  them 
are  incompetents.  Illiteracy,  as  we  all  know,  is 
highly  dangerous  to  society,  but,  surely,  it  is 
hardly  more  so  than  incompetency  in  the  actual 
business  of  life. 

It  will  be  recalled  that  the  great  Athenian  law- 
giver in  the  constitution  which  he  prepared  for 
his  native  city,  exempted  from  the  duty  of  main- 
taining their  parents  in  old  age,  all  those  boys 
whose  parents  had  neglected  to  teach  them  a  trade. 
Society  in  our  day  is  in  the  position  of  the  Athe- 
nian parent  who  failed  to  teach  his  son  a  trade; 
for  such  boys,  as  a  rule,  not  only  produce  abso- 
lutely nothing  of  value  to  society,  but,  on  the  con- 
trary, they  very  often  constitute  an  actual  menace 

138 


Education 

to  its  welfare.  The  penalty  imposed  by  Solon 
two  thousand  five  hundred  years  ago  was  simply 
that  of  a  natural  law,  to  which  we  are  still  sub- 
ject, and  which  we  still  violate  whenever  and 
wherever  we  permit  any  boy  to  grow  up  with 
hands  untrained  for  the  practical  work  of  life. 

Trade  schools  are  cheaper  than  reform  schools, 
and  manual  training  than  convict  labor.  What 
are  our  most  modern  penal  institutions,  for  the 
most  part,  but  trade  schools  for  criminals?  Rev. 
W.  H.  Hubbard,  manager  of  the  Auburn  Crafts, 
of  Auburn,  N.  Y.,  said  a  few  years  ago :  "As  it 
is  today,  the  criminal  boy  sent  to  one  of  our  re- 
formatories has  a  better  chance  of  becoming  a 
skilled  workman  and  earning  larger  wages,  than 
the  average  boy  who  is  not  a  criminal."  If  a  fair 
proportion  of  the  amounts  which  we  devote  to 
the  training  and  safe-guarding  of  criminals  were 
expended  in  making  productive  citizens  of  them 
in  youth,  the  criminal  cost  budget  would  be  far 
less  appalling  to  the  American  tax-payer  than  it 
is  today.  Judge  Ben  B.  Lindsay,  of  Colorado, 
says  that  "a  change  in  our  educational  system, 
whereby  our  boys  would  be  fitted  more  directly 
for  industrial  efficiency,  would  do  more  to  reduce 
crime  in  this  country  than  all  the  juvenile  courts 
we  could  establish."     Judge  Lindsay's  views  are 

139 


Causes  and  Cures  of  Crime 

in  substantial  accord  with  those  of  another  juve- 
nile court  judge,  Hon.  Willis  Brown,  of  Salt  Lake, 
who  says:  "I  am  indeed  a  strong  supporter  of 
industrial  education,  not  that  the  lack  of  it  brings 
children  into  juvenile  courts,  but  a  large  class  of 
boys  who  come  into  the  courts  more  sinned  against 
than  sinning,  would  never  drift  into  delinquencies 
if  they  were  kept  busy."  All  careful  students  of 
the  subject,  I  believe,  will  agree  with  Judge  Lind- 
say and  Judge  Brown.  And  there  is  not  a  prison 
warden  in  the  United  States  who  will  not  concur  in 
the  observation  of  John  J.  Fallon,  of  the  Black- 
well  Island  penitentiary,  that  "The  statement  that 
the  lack  of  trade  is  a  potent  and  a  permanent 
cause  of  crime,  is  borne  out  by  all  close  observers 
of  penology." 

If  it  shall  be  said  that  these  views  are  ad- 
dressed to  the  commercial  instincts,  or  that  this 
appeal  to  the  practical  side  of  the  matter  is  too 
nearly  allied  with  the  material  as  contrasted  with 
the  spiritual  and  aesthetic,  let  us,  for  the  moment, 
abandon  the  purely  material  viewpoint,  and  con- 
sider the  question  from  the  standpoint  of  mental 
and  spiritual  growth  alone.  I  not  only  affirm 
that  muscle  control  and  development  are  posi- 
tively indispensable  to  the  development  of  the 
brain  centers,  but  I  deny  absolutely  that  there  can 

140 


Education 

be  any  normal  degree  of  moral  and  intellectual 
development  without  a  fair  degree  of  manual  and 
physical  training.  An  educational  system  that 
clings  to  the  idea  that  the  special  senses  are  the 
only  avenues  to  brain  development  utterly  fails 
to  take  into  account  the  plainest  facts  of  physi- 
ology. The  fundamental  principle  in  brain  de- 
velopment, as  Dr.  Lydston  says,  is  the  fact  that 
the  brain,  like  every  other  organ  of  the  body, 
within  reasonable  limits  responds  to  stimuli  by 
growth  and  increased  functional  activity  and 
power;  and  exercise  of  any  of  the  sensory  or  mo- 
tor faculties,  therefore,  produces  improvement  in 
the  nutrition  of  the  corresponding  brain  area,  and, 
incidentally,  of  the  entire  brain.  In  this  way 
proper  exercise  of  the  muscles  improves  the  de- 
velopment not  only  of  the  motor  centres  but  also 
of  the  fore-brain.  We  know  that  atrophy  follows 
disuse  of  any  of  the  brain  centres,  and  this,  as  the 
authorities  point  out,  has  been  demonstrated  by 
the  examination  of  the  leg  or  arm  centres  at  some 
time  after  amputation  of  those  members. 

It  thus  appears  that  perfect  mental  training, 
without  correlative  manual  training,  is  a  physical 
impossibility.  It  necessarily  follows  that  perfect 
vioral  development,  in  the  same  circumstances,  is 
likewise  impossible.    No  man  who  will  not  work 

141 


Causes  and  Cures  of  Crime 

can  possibly  be  a  good  man.  In  this  connection 
there  comes  to  us  from  South  Germany  the  story 
of  an  old  Franciscan  monk,  who  lay  dying  in  his 
cell.  For  the  greater  part  of  his  life  he  had  been 
the  tailor  of  the  monastery.  In  his  last  moments 
he  asked  the  attendants  at  his  bed-side  to  bring 
to  him  his  "Key  of  Heaven."  They  brought  to 
him  a  prayer-book  of  that  name.  He  shook  his 
head.  They  brought  a  crucifix,  and  other  em- 
blems sacred  to  his  religion,  but  still  the  old  monk 
shook  his  head.  Finally  one  brought  to  him  his 
needle,  the  needle  with  which  he  had  wrought  so 
long  and  so  well.  The  old  friar  clasped  it  to  his 
bosom,  smiled,  and  peacefully  passed  away.  It 
was  his  "Key  of  Heaven." 

And  so  it  is  with  regard  to  every  honest,  useful 
work.  There  is  no  other  key  to  permanent  happi- 
ness. It  is,  indeed,  the  "Open  Sesame"  that  unlocks 
the  door  to  all  things  that  are  really  worth  while. 
For  honest  work  fs  worship,  and  "faith  without 
works  is  dead."  The  old  saying  that  an  idle  brain  is 
the  devil's  workshop  is  literally  true,  and  I  would 
add  to  it,  that  "Idle  hands  are  the  devil's  tools." 
Let  us  take  from  the  devil  his  tools.  Close  the 
devil's  workshop,  and  you  will  close  the  prison 
doors  to  the  great  majority  of  young  men  who  are 
daily  donning  the    felon's    garb.     This    is    the 

142 


Education 

"closed  shop"  that  will  close  the  principal  avenue 
to  crime. 

The  movement  in  behalf  of  industrial  training 
is  not  merely  a  materialistic  proposition.  There 
is  an  ethical  side  to  the  utilitarian  movement  in 
public  education.  There  is  no  surer  foundation 
for  an  honest,  upright  character,  than  that  sup- 
plied by  honest  work.  Diligence  in  useful  service 
is  the  foundation  of  every  moral  code.  Zoroaster 
taught  the  ancient  Medes  and  Persians  that  the 
tillage  of  the  soil  was  a  religious  duty.  The  laws 
of  the  ancient  Jewish  doctors  enjoined  the  learn- 
ing of  some  mechanical  art,  as  well  as  the  study 
of  the  law.  Not  faith  alone,  but  also  "works,'"* 
is  the  basis  of  the  Christian  system.  No  man  can 
be  good  who  is  not  useful,  and  no  man  can  safely 
and  truly  enjoy  where  he  has  not  earned. 

Sir  John  Lubbock  relates  an  old  Hindoo  tale  in 
which  Ammi  gives  to  his  son  an  acorn.  "What  see 
you  there?"  asked  the  sage.  "An  acorn."  "Very 
well;  open  it,  and  tell  me  what  you  see."  "I  see 
nothing,"  the  youth  replied.  "My  son,"  said  the 
sage,  "where  you  see  nothing,  there  dwells  a 
mighty  tree."  A  superficial  view  may  disclose  no 
alarming  symptoms  in  an  ordinary  idle  "boy;  he 
may  be  regarded,  perhaps,  as  a  kind  of  negative 
character,  a  ne'er  do  well — at  worst,  a  good  for 

143 


Causes  and  Cures  of  Crime 

nothing,  harmless  sort  of  fellow.  But,  where  the 
casual  beholder  may  perceive  nothing,  there 
dwells  a  mighty  growth;  there  dwells  the  fright- 
ful germ  of  crime;  a  hideous,  cancerous  growth 
that  is  eating  out  the  nation's  heart,  wrecking  tens 
of  thousands  of  happy  homes,  and  costing,  in 
every  decade,  as  much  as  a  civil  war.  Yes,  the 
idle  boy  is  growing,  always  growing;  it  is  the  law 
of  nature.  Every  child  will  develop  along  hon- 
orable and  useful  lines,  or  the  contrary;  he  will 
approximate  the  grand,  the  good,  the  beautiful, 
the  true,  or  he  will  become  an  instrument  of  evil, 
the  vehicle  of  misguided  passion  and  the  victim  of 
folly — ^but  grow  he  will,  and  must. 

Shall  we  send  the  boy  to  school?  By  all  means. 
But  let  us  send  the  whole  boy  to  school.  Our  ed- 
ucational system  is  pitifully  warped,  narrow  and 
one-sided.  The  latest  bulletin  from  Washing- 
ton advises  us  that  juvenile  crime  is  on  the  in- 
crease; and,  according  to  Dr.  G.  Stanley  Hall,  in 
his  great  work  on  "Adolescence,"  wide-spread 
youthful  criminalism  is  in  and  of  itself  a  concrete 
expression  of  educational  failure.  It  has  already 
been  shown  that  normal  brain  development  is  im- 
possible where  physical  training  is  neglected. 
And  it  is  well  that  this  is  so;  for,  if  it  could  be 
done,  it  would  be  as  absurd  to  develop  naught  but 

144 


Education 

the  head  in  one  man  as  it  would  be  to  develop  in 
another  man  hands  of  undue  proportion,  or  feet 
of  abnormal  size.  What  the  world  needs,  and 
what  America  most  needs  today,  is  not  abnormal 
development  of  any  kind,  but  well-balanced  men; 
men  of  symmetry,  force  and  poise;  not  brilliant 
cranks  and  neuropaths,  but  men  of  even  temper- 
ament, who  can  move  forward  with  dignity  and 
strength  in  the  world's  work,  and  who  can  meet 
the  duties  of  life  with  patience,  intelligence,  per- 
sistence and  courage,  with  capacity  and  unbend- 
ing will  for  the  work  that  iies  ever  immediately  at 
hand. 

I  believe  in  the  humanities.  I  revere  the  clas- 
sics, and  would  by  no  means  exclude  them  from  the 
curricula  of  our  schools  and  colleges.  Far  be  it 
from  me  to  suggest  the  banishment  of  those  re- 
finements and  adornments  which  have  ever  fol- 
lowed in  the  wake  of  polite  learning  in  every  pol- 
ished age.  But  the  structure  of  human  character 
cannot  be  made  beautiful  until  it  first  be  made 
durable.  The  true  adornments  of  the  soul  are 
not  the  rainbow  tints  that  fade  away  with  the 
passing  of  the  mist.  In  vain  shall  we  prepare  our 
youth  for  the  enjoyments  of  life  while  ignoring 
the  practical  work  of  life.  Let  us  not  take  from 
youth  its  visions,  from  boyhood  its  dreams;  but 

145 


Causes  and  Cures  of  Crime 

while  we  are  filling  the  American  boy  with  visions 
of  the  future  glories  and  possibilities  of  American 
citizenship,  let  us  not  neglect  to  equip  him  for 
the  humble  and  the  ordinary  though  vastly  more 
important  duties  of  life.  We  teach  our  youth  that 
every  boy  in  America  may  prassibly  be  president 
of  the  United  States  some  day,  when  we  know 
that,  as  a  matter  of  fact,  but  eight  men,  in  the 
ordinary  course  of  events,  can  reach  that  office  in 
a  single  generation.  But  the  country  is  not  so 
badly  off  for  presidents;  nor  politicians,  either,  for 
that  matter — we  have  had  a  few  of  both  that  we 
might  have  gotten  along  without.  Why  not  point 
the  boys  to  the  honors  that  lie  in  other  spheres? 
We  could  get  along  very  nicely  with  an  exceed- 
ingly modest  proportion  of  our  so-called  great 
men,  if  we  could  only  depend  upon  the  average 
man  to  do  well  his  work,  and  to  stay  on  the  job. 
In  those  industrial  operations  which  constitute 
the  basis  of  our  social  activities,  as  in  military  op- 
erations, the  point  of  chief  concern  is  not  alone 
the  brilliancy  of  the  generalship.  It  is  the  equip- 
ment and  general  efficiency  of  the  rank  and  file 
that  count.  No  mihtary  triumph  was  ever  won 
by  "the  thunder  of  the  captains  and  the  shouting." 
And  so,  with  us  of  the  United  States,  industrial 
supremacy  can  never  be  either  achieved  or  main- 

146 


Education 

talned  alone  by  those  great  captains  of  industry, 
those  mighty  commercial  giants,  who  have  arisen 
so  conspicuously  among  us.  We  must  ultimately 
depend  upon  the  general  efficiency  of  the  rank  and 
file. 

American  industrial  supremacy  today  is  said  to 
be  threatened  by  monopolies,  by  freight  rebates, 
by  tariffs,  by  faulty  schemes  of  currency,  and 
what  not.  But  the  gravest  menace  which  con- 
fronts American  industry  today  is  none  of  these; 
it  is  the  threat  of  growing  inefficiency  on  the  part 
of  American  labor,  as  compared  with  the  increas- 
ing industrial  efficiency  of  the  labor  of  some  for- 
eign countries,  notably  that  of  Germany.  A  re- 
cent report  to  the  manufacturers'  association  de- 
clares that  "A  majority  of  the  manufacturing 
plants  and  workshops  of  our  country  have  work- 
ingmen  educated  in  Germany  as  superintendents 
and  foremen."  With  the  old  apprentice  system 
all  but  abolished,  it  may  be  in  an  effort  to  create 
an  artificial  scarcity  of  labor,  and  with  trade 
schools  so  few  and  remote  and  impossible  of  ac- 
cess to  the  children  of  the  laboring  poor  who  need 
them  most,  the  American  boy  is  in  many  instances 
totally  debarred  from  that  most  sacred  right  of 
any  citizen,  the  right  to  learn  an  honest  trade.  I 
have  seen  a  letter  from  an  eighteen  year  old  boy, 

147 


Causes  and  Cures  of  Crime 

asking  that  he  be  sent  to  the  Missouri  State  Re- 
form School  in  order  to  learn  the  trade  he  de- 
sired to  enter;  knocking  at  the  gates  of  a  penal  in- 
stitution of  the  State,  and  seeking  there  the  oppor- 
tunity which  had  been  denied  to  him  elsewhere. 
Is  it  any  wonder  that  over  ninety  per  cent  of  the 
young  men  sent  to  our  reformatories  are  found 
to  have  been  wholly  without  previous  occupations  ? 
Are  we  astonished  to  learn  that  the  majority  of  the 
convicts  in  our  penitentiaries  have  had  no  settled 
occupation? 

They  who  have  looked  behind  social  phenom- 
ena to  discern  and  search  out  the  causes  of  racial 
development  or  degeneracy,  are  well  aware  that 
race  deterioration  is  the  sole  and  the  inevitable 
alternative  of  race  education.  As  Samuel  Royce 
said,  some  thirty  years  ago:  "Neglect  man's 
moral  training,  and  he  becomes  a  monster.  Train 
him  exclusively  for  industry,  and  he  becomes  a 
machine.  Train  exclusively  his  moral  faculties, 
and  he  becomes  a  zealot.  Train  exclusively  his 
intellect,  and  he  becomes  an  iceberg  or  a  heartless 
villain.  Thus,  a  one-sided  education  spoils  a  man, 
and  makes  of  the  intended  king  of  the  cosmos  a 
maniac,  pauper,  criminal  or  villain."  Statistics 
show  that  one  in  every  three  hundred  and  twenty 
persons  in  this  country  is  now  insane,  criminal  or 

148 


I 


Education 

pauper.  How  many  of  the  rest  of  us  are  villains 
I  am  not  advised,  but  we  must  all  admit  that  the 
provocation  is  certainly  very  great.  At  any  rate, 
we  are  all  paying  the  penalty,  and  the  sins  of  the 
fathers  are  being  visited  upon  the  children,  even 
unto  the  fourth  generation;  and  the  rain  contin- 
ues to  fall  alike  upon  the  just  and  the  unjust,  only 
the  unjust  usually  has  an  umbrella,  even  if  it  does 
belong  to  somebody  else. 

And  how  shall  we  escape  or  minimize  the  bur- 
den? The  trade  schools  alone  will  not  suffice. 
Only  about  twenty-five  thousand  are  now  attend- 
ing the  trade  schools.  And  these  schools  are  so 
few  and  far  between,  and  the  cost  of  attending 
them  so  great,  that  but  an  infinitesimal  propor- 
tion of  our  youth  may  ever  hope  to  reach  them. 
The  system  should  be  broader.  The  rudiments 
of  industrial  training  are  now  begun  in  the  kin- 
dergarten. Why  not  carry  some  measure  of  in- 
dustrial training  through  all  the  grades  of  the 
public  schools? 
•  One  hour  a  day,  in  every  school  room  in  the 
land,  would  give  to  every  man,  woman  and  child 
of  the  next  generation  at  least  the  rudiments  of 
an  honest,  useful  and  profitable  occupation,  would 
give  to  all  who  wanted  it  a  trade,  and  would  make 
of  the  next  generation  of  Americans  the  most  pro- 

149 


Causes  and  Cures  of  Crime 

ductive  and  industrially  the  most  efficient  race  the 
world  has  ever  seen.  Industrial  education  is  well 
worth  the  experiment.  Surely,  an  hour  a  day  is 
not  too  much  to  ask  for  this  great  purpose,  yet  it 
would  be  sufficient;  and  the  venerable  "three  R's" 
of  our  educational  system  could  well  afford  so 
small  a  sacrifice  in  so  great  a  cause.  No  rich 
man's  son  would  be  the  poorer,  while  every  poor 
man's  son  would  be  incalculably  richer,  with  the 
knowledge  that  this  hour  would  give.  Therefore 
I  would  advance,  as  the  true  ideal  of  a  school 
system  that  aims  to  benefit  all  and  as  a  most  po- 
tent influence  on  the  prevention  of  crime,  the  edu- 
cation of  the  whole  child — heart,  hand  and  brain; 
useless,  each,  without  the  other,  and  susceptible 
alone  of  normal  development  when  all  are  jointly 
trained. 

Every  nation  that  has  ever  lived  and  died,  has 
died  because  it  didn't  know  how  to  make  a  living. 
Egypt  carved  her  splendid  monuments  with  an 
artist's  hand  and  the  colossal  grandeur  of  her 
architecture  has  never  since  been  matched;  but 
although  she  could  shape  the  obelisks,  build  the 
pyramids  and  read  her  glory  in  Elkarnack's  lofty 
hall,  she  could  not  make  a  plow,  and  in  the  shadow 
of  the  Pyramids  and  among  the  tombs  of  the 
Pharaohs  her  degenerate  sons  are    still    turning 

150 


Education 

the  world's  most  fertile  soil  with  a  crooked  stick. 
Greece  filled  the  world  with  her  syllogisms  and 
her  songs;  she  breathed  upon  the  rough  block  of 
stone  and  forthwith  it  sprang  into  chiselled  sym- 
phonies of  unapproachable  grace  and  beauty;  but, 
though  counterfeiting  life,  she  knew  not  how  to 
live,  and 

"storied  urn  or  animated  bust" 
record  at  once  her  glory  and  her  doom.  The  elo- 
quence that  "fulmined  over  Greece  to  Macedon 
and  Artaxerxes'  throne,"  could  move  brave  hearts 
to  deeds  of  honor  and  renown,  but  it  could  not 
call  up  the  forces  of  Nature  to  do  the  will  of  man. 
Xerxes  the  Great  cast  fetters  into  the  sea  in 
token  of  his  conquest  of  the  deep,  but  in  the 
straits  of  Salamis  the  waves  mocked  at  his  pride, 
and  for  twenty  centuries  the  jackals  have  howled 
and  the  owls  and  bats  have  hovered  among  the 
broken  monuments  of  his  wasted  power.  Rome 
could  conquer  nations,  but  she  could  not  feed 
them;  and,  gorged  with  riches,  she  starved  to 
death  in  the  Edens  of  ancient  civilization.  If  we 
of  the  modern  era  may  claim  any  really  effective 
superiority  over  the  civilizations  of  the  earlier 
day,  it  is  the  superiority  of  industrial  efficiency. 
In  proportion  as  we  have  learned  to  work,  learned 
to  do  more  work  and  better  work,  just  in  that  pro- 

151 


Causes  and  Cures  of  Crime 

portion  have  we  advanced  in  our  civilization,  laid 
deep  the  sure  foundations  of  personal  happiness 
and  social  security,  and  paved  the  way  for  a 
larger  and  a  better  growth. 

In  the  later  period  of  Greece,  as  well  as  of 
Rome,  the  trades  were  despised  as  the  fit  occupa- 
tions of  slaves  alone.  Even  Aristotle^  did  not 
think  it  wise  to  intrust  the  affairs  of  government 
to  tradespeople.  Among  the  Boeotians  men  who 
defiled  themselves  by  commerce  were  for  ten 
years  deprived  of  the  right  to  hold  public  ofHce. 
In  Rome,  Augustus  condemned  a  senator  to  death 
for  engaging  in  manufacture. 

For  nearly  a  thousand  years  despotism,  slavery 
and  armed  superiority  have  been  slowly  reced- 
ing before  the  sobering  and  law-abiding  spirit  of 
industry.  It  was  the  tradesmen  of  the  middle 
ages  who  builded  the  fortified  towns  and  founded 
modern  liberty.  The  Italian  Republics,  the  cities 
of  the  Hanseatic  League,  the  prosperous  towns 
of  the  Netherlands,  were  monuments  to  the  Craft 
and  Guild,  and  to  the  rise  of  the  industrial  classes 
Europe  owes  her  modern  institutions. 

Here  lies  the  duty  of  the  state — to  teach  the 
means  of  sustenance  and  growth.  But,  regard- 
less of  what  the  state  may  or  may  not  do  in  the 

•Polit  Eth. 

152 


Education 

matter  of  industrial  training,  the  father  and 
mother  can  and  they  should  in  so  far  as  may  be 
possible,  teach  the  child  to  know  and  love  his 
work.  "In  this  regard,"  Lombroso  says,  "the 
family  can  accomplish  far  more  than  the  teacher. 
.  .  .  Yet  with  us  the  family  relies  upon  the 
school  for  the  care  of  education,  while  the  school- 
master, for  his  part,  who  in  any  case  could  do 
little  because  of  the  great  number  of  pupils  de- 
manding his  attention,  counts  upon  what  the  fam- 
ily is  supposed  to  accomplish.  Thus  both  remain 
inactive  just  where  crime  could  be  most  effectively 
prevented.  The  family-public  does  not  realize 
that  into  the  integration  of  the  state  and  the  des- 
tination of  the  child,  vocation  and  aptitudes  enter 
as  exponents  and  the  lack  of  intellectual  prepara- 
tion as  a  coefficient;  and  that  to  obtain  the  inte- 
gration there  is  needed  the  union  and  the  continu- 
ity of  all  forces,  including  those  for  whose  devel- 
opment the  parents  most  earnestly  strive." 

Not  once,  but  many  times,  has  the  typical  gray- 
haired  father  stood  before  me,  his  head  bowed 
with  sorrow  and  shame,  pleading  for  the  pardon 
of  his  wayward  boy.  And  the  story  has  usually 
been  the  same — 

"He  had  a  good  home,  and  a  Christian  mother. 
I  gave  him  a  fair  education.    There  is  not  a  drop 

153 


Causes  and  Cures  of  Crime 

of  criminal  blood  in  his  entire  family.  He  is  the 
first  of  his  name  to  wear  the  prison  stripes.  He  is 
not  a  criminal  at  heart — it  is  not  in  him;  it  was 
cigarettes,  drink,  bad  habits,  bad  women,  bad 
companions." 

True  ?  Yes ;  every  word  of  it.  But  it  was  not 
all  the  truth.  The  boy  had  never  really  learned 
to  work.  He  had  not  learned  the  meaning  of 
work.  He  may  have  had  a  job.  He  may  have 
stayed  in  a  shop,  or  clerked  in  some  store  or  bank. 
But  he  had  two  masters.  He  loved  the  one  and 
he  hated  the  other.  His  heart  was  not  enlisted 
with  his  hand;  there  was  no  joy  in  his  task;  his 
soul  was  not  in  his  labor.  Therefore  he  knew  not 
work,  and  he  did  not  work;  he  only  half-worked. 

A  boy  does  not  always  work  when  he  swings  a 
hammer  or  balances  a  set  of  books.  If  he  can 
find  no  joy  in  his  task,  if  he  shall  come  to  look 
upon  his  employer  merely  as  a  boss  and  upon  the 
day's  duties  as  a  period  of  slavery,  from  which 
relief  comes  only  after  business  hours — he  does 
not  work,  he  shirks.  To  such  a  boy,  the  wine- 
cup  will  be  a  temptation.  He  will  seek  his  relief 
in  dissipation,  and  will  soon  be  found,  with  others 
of  his  kind,  evolving  schemes  for  getting  rich 
quickly,  and  without  the  usual  drudgery.  He  may 
gamble,  he  may  play  the  races,  or  what  not.    He 

154 


Education 

is  deeply  imbued  with  the  idea  that  the  world 
owes  to  him  a  living;  and  the  more  he  ponders 
the  subject  the  less  scrupulous  he  will  become  as  to 
how  he  gets  that  living.  He  does  not  think  of  what 
he  owes  to  the  world;  of  what  he  owes  to  his  pa- 
rents, his  country  and  home.  He  has  no  respect 
for  property  rights,  and  soon  comes  to  regard  all 
legitimate  business  as  a  graft.  He  may  end  in 
forgery  or  embezzlement,  if  in  nothing  worse; 
but  whatever  the  course  he  may  take,  the  general 
tendency  is  downward,  and  the  penitentiary  is 
yawning  to  receive  him. 

"Tell  me,"  said  an  old  church  deacon,  his  voice 
quivering  with  grief  as  he  discussed  the  case  of 
his  own  convicted  son — "tell  me  why  it  is  that 
the  sons  of  preachers  and  deacons  always  turn 
out  so  badly!"  They  do  not  always  turn  out  so 
badly,  I  advised  him,  but  they  are  not  exempt 
from  the  operation  of  those  laws  which  govern 
human  nature.  A  boy  may  be  apparently 
schooled  in  creed  and  dogma,  and  still  fall.  In 
all  such  cases,  there  is  the  same  vital  defect  in 
the  boy's  education. 

The  joy,  the  beauty,  the  utility,  the  everlasting 
glory  of  honest  work  and  the  eternal  disgrace  of 
indolence — these  should  be  among  the  first  les- 
sons impressed  upon  the  youthful  mind,  and  the 

155 


Causes  and  Cures  of  Crime 

father  who  so  instructs  his  son  at  home  may  save 
the  State  the  trouble  and  the  expense  of  attempt- 
ing to  do  so  later,  under  circumstances  rather  more 
adverse.  The  boy  who  is  taught  to  love  his  work 
for  its  own  sake,  who  learns  to  excel  in  it  as  a 
matter  of  pride,  and  who  thinks  more  of  what  he 
owes  to  the  world  than  of  what  the  world  owes 
to  him,  will  not  long  be  without  an  honorable,  a 
useful  and  a  profitable  occupation.  Whether  he 
be  carpenter,  machinist  or  electrician,  in  whatso- 
ever line  of  useful  activity  his  energies  may  de- 
velop, in  all  human  probability  he  will  continue  to 
ply  his  trade.  His  mind  will  be  occupied  with  the 
pleasures  and  the  duties  of  his  calling,  and,  so 
occupied,  he  will  pass  by  the  idle  and  the  dissi- 
pated at  a  time  when,  as  experience  has  shown, 
the  human  mind  is  most  susceptible  to  those  in- 
fluences which  make  for  crime.  The  prisons  are 
not  made  for  that  boy,  and  you  will  not  find  him 
there.  Teach  the  child  to  thoroughly  understand 
his  work,  and  he  will  love  it.  Once  he  comes  to 
know  that  meaning  in  all  its  fullness  and  its  truth, 
once  he  grasps  the  sweetness  and  the  glory  of  a 
well-loved  task,  the  boy  is  safe;  you  need  feel  no 
concern  as  to  his  future;  you  have  saved  the  boy 
from  failure  and  from  crime. 

Let  the  child  be  taught  that  idleness  itself  is 

156 


Education 

crime.  The  boy  who  dreads  his  task,  who  shirks 
useful  service,  is  developing  the  germ  of  crimin- 
ality. It  is  no  answer  to  this  to  say  that  such  is 
the  disposition  of  most  boys.  Perhaps  it  is,  at 
some  period  of  their  youth.  All  very  young  chil- 
dren are  essentially  criminal  by  nature,  but  with 
proper  training  and  environment  they  will  speedily 
overcome  all  such  tendencies.  If  such  be  the  dis- 
position of  most  boys,  it  is  also  true,  most  fortu- 
nately, that  most  boys  do  overcome  it;  and  woe 
be  unto  those  who  do  not. 

Indolence,  procrastination,  shirking,  half-work 
— through  these  a  boy  first  learns  to  steal,  for  in- 
dolence itself  is  fundamentally  dishonest.  It  is 
the  very  tap-root  of  crime.  The  boy  who  habitu- 
ally steals  time  from  his  employer  is  in  a  fair 
way  to  steal  something  of  more  tangible  value. 
He  covets  that  which  he  does  not  earn.  He  does 
not  recognize  his  obligation  to  give  to  his  work 
the  best  that  is  in  him ;  to  give  to  the  world  service 
for  service — and  to  give  it  first.  In  short,  he  has 
not  learned  to  work.  He  is  not  interested  in  the 
task  before  him,  in  the  business  immediately  at 
hand.  His  mind  is  elsewhere — in  dreams,  per- 
haps— but,  beyond  the  dream,  there  lies  the 
shadow  of  the  iron  bars. 

"Just  as  the  twig  is  bent  the  tree's  inclined." 
157 


Causes  and  Cures  of  Crime 

As  the  Biblical  sage  observes,  "Train  a  child  in 
the  way  he  should  go,  and  when  he  is  old  he  will 
not  depart  from  it."  The  child-idler  is  simply 
the  adult  idler  in  the  making,  and,  in  about  sev- 
enty-five per  cent  of  the  cases,  the  adult  idler  is 
the  criminal. 

If  the  habits  formed  in  youth  may  be  regarded 
as  in  any  sense  an  index  or  forecast  of  the  char- 
acter of  the  adult,  then,  in  the  light  of  the  crim- 
inal statistics,  the  problem  of  child-idleness  may 
justly  lay  claim  to  at  least  some  measure  of  the 
dignity  and  importance  so  freely  accorded  the 
much-mooted  problem  of  child-labor;  and  before 
making  it  impossible  for  the  youth  to  acquire  prac- 
tical (as  well  as  theoretical)  knowledge  of  gain- 
ful pursuits,  we  should  reckon  the  latent  dangers 
that  lurk  within  the  possibilities  of  a  generation 
brought  up  without  effective  knowledge  of  useful 
work. 

To  be  sure,  it  by  no  means  follows  that,  in 
teaching  the  child  to  work,  his  powers  should  be 
taxed  beyond  their  capacity.  To  do  so  would  be 
inhuman  in  the  extreme,  and  as  unnecessary  as  in- 
human. The  labor  of  the  child  should  never  pro- 
ceed beyond  the  limits  of  healthful  exertion,  and 
that,  too,  within  surroundings  carefully  safe- 
guarded with  respect  to  morality  and  sanitation. 

158 


Education 

But  he  should  be  taught  and  made  to  understand 
his  obligation  to  serve,  inasmuch  as  he  is  served; 
to  give,  as  he  receives;  to  bring  to  the  world  as 
he  takes  from  it — and  he  should  be  taught  the 
means  of  performing  that  obligation.  With  such 
an  education  he  will  be  both  able  and  willing  to 
fashion  with  hand  or  brain,  and  he  will  go  forth 
to  his  duties  in  the  morning  of  life,  feeling,  not 
that  the  world  owes  to  him  a  living,  but  that  he 
owes  to  the  world  a  life. 


159 


CHAPTER   VII. 

Social  Amelioration. 

No  scheme  of  social  betterment  which  fails  to 
include  economic  justice  in  its  fundamental  con- 
cept can  hold  forth  a  possibility  of  effective  relief 
or  justify  the  hope  of  enduring  reform.  "History, 
statistics,  and  direct  observation  of  criminal 
phenomena  prove,"  says  Ferri,  "that  penal 
laws  are  the  least  effectual  in  preventing 
crime,  whilst  the  strongest  influence  is  exercised 
by  laws  of  the  economic,  political  and  adminis- 
trative order."  We  shall  never  be  able  through 
exercise  of  social  activities  to  do  for  man  as  much 
as  he  can  do  for  himself  through  his  individual 
activities  when  left  free  to  employ  them.  Civil- 
ization is  not  a  hot-house  plant.  Its  growth  can- 
not be  forced.  Its  development  has  been  most 
rapid  where  freedom  has  been  greatest  and 
license  has  been  least;  and  where  freedom  has 

1 60 


PLATE    VIII.— DEGENERATE    MURDERERS. 
(Courtesy  St.  Louii  Police  Department.) 


Social  Amelioration 

languished,  where  liberty  has  been  shackled,  civ- 
ilization has  halted.  Man  must  be  free."  His 
faculties  must  have  freedom  to  develop  and  they 
must  have  an  unrestricted  field  of  opportunity  in 
which  to  exert  themselves.  In  proportion  as  he 
is  denied  the  absolutely  unrestricted  freedom  of 
opportunity  to  live,  to  labor  and  to  grow,  the  fac- 
ulties of  man  are  dwarfed,  his  mind  is  cowed,  his 
ideals  shrunken,  his  social  powers  and  capacities 
are  atrophied,  and  he  approximates  the  savage 
and  the  brute.  Legalized  privileges  which  give 
to  one  man  or  group  of  men  opportunities  which 
are  denied  to  all  men  tend  to  breed  and  accentu- 
ate class  distinctions  and  to  divide  society  into 
governing  and  dependent  classes.  It  is  plain 
that  a  self-governing  society  cannot  long  ex- 
ist upon  that  basis.  It  will  degenerate  into 
absolutism  by  means  of  oligarchy,  monarchy,  or 
the  mob. 

All  history  shows  that  there  may  be  despotism 
without  monarchy,  and  that  absolutism  may  exist 
under  the  guise  of  freedom.  The  subjects  of  a 
monarchy  may  not  seldom  enjoy  a  liberal  measure 
of  freedom,  while  the  most  degrading  tyranny 
may  at  times  be  enacted  under  the  forms  of  a 
nominally  free  government,  in  the  name  of  free- 
dom and  by  sanction  of  law.    Where  men  do  not 

i6i 


Causes  and  Cures  of  Crime 

enjoy  equal  opportunities  there  cannot  be  free- 
dom. I  have  heard  a  man,  vain  in  his  rags, 
boasting  of  his  liberty,  when  in  point  of  fact  he 
had  no  more  real  liberty  than  a  Spartan 
helot,  bound  to  the  soil  and  doomed  to  a 
life  of  servile  drudgery  for  the  bare  means  of 
existence. 

In  most  minds  the  idea  of  slavery  is  associated 
with  that  of  manacles,  chains  and  other  imple- 
ments of  physical  restraint,  and  men  are  apt  to 
think  thatwhere  these  outward  insignia  are  lacking 
slavery  does  not  exist.  But,  the  more  we  observe 
the  so-called  free  nations  of  the  world  the  more 
irresistibly  are  we  drawn  to  the  conclusion  that 
it  is  extremely  hazardous  to  attempt  to  measure 
the  degree  of  freedom  existing  in  a  nation  by  the 
high-sounding  phrases  of  constitutions  and  polit- 
ical platforms.  In  the  United  States,  for  exam- 
ple, there  are  today  more  vagabonds  and  paupers 
than  there  were  men,  women  and  children  during 
the  war  of  the  American  revolution.  The  biol- 
ogist may  be  satisfied  to  classify  these  people 
merely  as  "degenerate  types."  But  that  does  not 
solve  the  problem  they  present.  They  are,  as 
James  H.  Hammond  said  of  another  class,  in  a 
speech  delivered  in  the  United  States  Senate  in 
1858: 

162 


Social  Amelioration 

"The  very  mudsills  of  society.  .  .  .  We  call 
them  slaves  .  .  .  but  I  will  not  characterize 
that  class  at  the  North  with  that  term;  but  you 
have  it." 

Nearly  seventy  per  cent  of  the  American  peo- 
ple are  homeless — but  they  don't  know  it.  They 
are  renters,  mere  tenants  by  the  courtesy  of  an- 
other, owning  no  land  and  having  no  right  to  a 
foot  of  the  soil.  Perhaps  we  should  not  say 
"homeless."  Possibly  it  were  well,  like  the  genial 
and  amorous  Sam  Weller,  to  use  some  "more 
tenderer"  word.  Let  us,  then,  substitute  "non- 
home-owning."  The  percentage  of  non-home- 
owning  bread-winners  in  some  of  the  larger  cities 
of  the  Union  is  as  great  as  ninety-five  per  cent. 
In  view  of  these  conditions  how  strikingly 
apropos  are  the  words  of  Galusha  A.  Grow, 
spoken  in  the  American  Congress  September 
30th,  1852: 

"It  is  in  vain  you  talk  of  the  goodness  of  an 
'Omniscient  Ruler'  to  him  whose  life  from  the 
cradle  to  the  grave  is  one  continued  scene  of  pain, 
misery  and  want.  Talk  not  of  free  agency  to 
him  whose  only  freedom  is  to  choose  his  own 
method  to  die.  In  such  cases,  there  might,  per- 
haps, be  some  feeble  conception  of  religion  and 
its  duties — of  the  infinite,  everlasting  and  pure; 
but  unless  there  be  a  more  than  common  intellect, 

163 


Causes  and  Cures  of  Crime 

they  would  be  more  like  the  dim  shadows  that 
float  in  the  twilight.  If  you  would  lead  the  erring 
back  from  the  paths  of  vice  and  crime  to  the 
paths  of  virtue  and  honor,  give  him  a  home — 
give  him  a  hearthstone,  and  he  will  surround  it 
with  household  gods." 

In  a  speech  by  Robert  Toombs,  of  Georgia,  de- 
livered at  Boston  in  1856,  the  following  quota- 
tion from  President  John  Adams  was  used  in  ar- 
gument to  show  that  the  black  slavery  of  the 
South  at  that  time  was  no  worse  than  the  white 
slavery  of  the  North : 

"What  matters  it  whether  a  landlord  employ- 
ing ten  laborers  on  his  farm  gives  them  annually 
as  much  money  as  will  buy  them  the  necessaries 
of  life,  or  gives  them  those  necessaries  at  short 
hand?" 

There  can,  indeed,  be  but  little  difference.  This 
is  plain  upon  the  slightest  reflection.  The  same 
thought  was  expressed  by  Schopenhauer^  when 
he  wrote:  "The  difference  .  .  .  between  the 
serf,  the  tenant,  occupier,  mortgagor,  etc.,  is  more 
in  form  than  in  fact.  Whether  I  own  the  peasant 
or  the  land  from  which  he  must  obtain  his  nour- 
ishment, the  bird  or  its  food,  the  fruit  or  the  tree, 
is  practically  a  matter  of  small  importance." 

^  Parega  and  Par.,  vol    2,  sec.  126. 
164 


Social  Amelioration 

Although  universal  suffrage  may  exist,  the 
man  who  dares  not  vote  contrary  to  the  will  of 
his  employer,  is  certainly  circumscribed  by  lack 
of  freedom  of  action  or  of  will,  and  has  as  little 
actual  voice  in  the  government  as  he  would  if 
completely  deprived  of  the  elective  franchise. 
The  man  who  is  obliged  to  pay  tribute  to  monop- 
oly is  certainly  in  bondage.  The  man  who  is  re- 
quired to  do  the  will  of  a  master  in  order  to  ob- 
tain a  living  for  himself  and  family,  is  most  as- 
suredly in  a  state  of  subjection  to  the  will  of  an- 
other. What  is  this,  if  not  slavery?  Whoever 
must  beg  employment  as  a  boon,  who  is  not  at  lib- 
erty to  choose  either  his  labor,  his  wages  or  his 
employer,  and  whose  political  acts  are  dictated 
by  the  man  who  gives  him  work  to  do,  is  as  much 
a  slave  as  though  his  person  were  the  property  of 
another.  You  do  own  my  body  when  you  control 
the  means  whereby  I  live. 

But  the  black  slave  of  America,  sixty  years  ago, 
was  at  least  sure  of  his  board  and  clothing,  and  of 
medical  attendance  when  sick.  The  industrial 
serf  of  the  present  day  is  not  valuable  enough  to 
receive  such  attention,  for  when  he  dies,  or  be- 
comes disabled,  there  are  too  many  to  be  had  for 
the  asking.  And,  to  render  his  condition  still 
more  distressing,  the  white  slave  is  tantalized  by 

165 


Causes  and  Cures  of  Crime 

the  sight  of  that  freedom  which  he  is  told  be- 
longs to  him  but  which  is  always  just  beyond  his 
reach;  like  the  poor  wretch  whom  Verres  cruci- 
fied in  plain  view  of  the  Italian  shore,  that  he 
might  in  the  last  agonies  of  death  behold  his  na- 
tive land  of  liberty  and  draw  fresh  torment  from 
the  thought  that  he,  a  Roman  citizen,  was  help- 
less beneath  the  very  shadow  of  his  country's 
laws. 

Let  it  be  remembered  that  man  can  receive  but 
one  thing  in  exchange  for  liberty,  and  that  is 
slavery;  and  no  man  can  be  wholly  free  while  his 
neighbor  is  partly  slave.  The  taint  of  involun- 
tary servitude  affects  us  all. 

That  there  may  be  equality  of  servitude  does 
not  alter  the  case,  although,  it  must  be  admitted, 
equahty  is  a  word  to  conjure  with.  Accordingly 
as  it  may  be  construed,  it  may  imply  a  just  balance 
of  private  rights  and  governmental  powers,  or  it 
may  imply  a  socialistic  absolutism,  or  mob  law, 
or  monarchical  despotism.  It  has  stood  for  more 
and  for  less,  and  it  has  done  more  harm  and  more 
good,  perhaps  (in  one  way  or  another),  than  any 
other  one  word  in  use  during  the  past  one  hun- 
dred and  fifty  years.  Deriving  its  first  political 
significance  from  Rousseau,  it  has  ever  since  been 
the  catch-word  of  the  charlatan,  the  hope  and  de- 

i66 


Social  Amelioration 

spair  of  nations,  and  the  will-o'-the-wisp  of  popu- 
lar discontent.  Equality  may,  in  its  political  ap- 
plication, mean  everything  or  it  may  mean 
nothing.  But  there  are  very  few,  indeed,  who 
have  mouthed  it  as  a  political  creed  and 
have  at  the  same  time  accepted  the  theory 
of  human  equality  as  to  duties  and  responsibili- 
ties as  well  as  to  rights;  that  is  not  the  popular 
doctrine. 

We  talk  vaingloriously  of  the  equality  of  po- 
litical status;  of  the  equality  of  civil  rights;  of  the 
equality  of  opportunity.  The  first  exalts  the  shift- 
less and  unlettered  brute  to  the  same  plane  of 
sovereignty  with  the  wise,  the  useful  and  the  good, 
gives  ignorance  a  vetative  power  over  intelli- 
gence, and  lowers  the  general  average  of  citizen- 
ship ;  the  second  guarantees  rights  without  enforc- 
ing responsibilities;  and  the  third,  equality  of  op- 
portunity, without  further  elucidation,  is  mean- 
ingless and  misleading.  Equal  opportunity  to 
labor  and  enjoy  the  fruits  of  labor,  to  freely 
develop  the  best  that  is  in  us  and  to  fully 
enjoy  the  results  of  that  development — that 
were  indeed  a  glorious  ideal.  But  it  is  by  no 
means  guaranteed  by  an  enforced  equality  of  social 
condition,  nor  by  equality  of  civil  rights  without 
their  naturally  and  logically  attendant  civic  and 

167 


Causes  and  Cures  of  Crime 

moral  responsibilities.  Equality  of  opportunity 
cannot  be  realized  so  long  as  law-made  privileges 
exist. 

That  glittering  and  magical  revolutionary  de- 
vice, "Liberty,  Equality,  Fraternity,"  has  long 
been  a  favorite  implement  of  the  demagogue.  It 
tickles  the  ear  of  the  populace.  It  is  emblazoned 
on  the  banners  of  every  popular  crusade.  It  is 
the  talismanic  emblem  of  tribunitian  power.  A 
French  political  dictionary  published  in  1848 
said :  "Liberty  is  equality  and  equality  is  liberty." 
This  was  the  idea  of  the  first  revolutionists.  They 
did  not  perceive  the  distinction,  as  did  the  first 
Napoleon,  who  said:  "The  French  love  equal- 
ity; they  care  little  for  liberty." 

Men  are  prone  to  forget  that  there  may  be 
equality  without  liberty.  Wherever  there  exists 
unlimited  and  unbroken  power,  which  may  be  im- 
mediately exercised  without  check,  whether  such 
power  be  vested  in  a  single  man  or  in  an  absolute 
democracy — there  liberty  cannot  exist,  although 
there  may  be  equality.  Whatever  may  be  said 
by  humanistic  writers  in  deprecation  of  the  in- 
equality of  men,  we  must  admit  that  there  is  an  es- 
sential difference  in  the  worth  and  quality  of  men; 
a  very  great  disparity  in  their  capabilities,  both 
physical  and  mental.    The  earning  capacity  of  one 

168 


PLATE    IX. — TYPES    OF    FORGERS. 
(Courtesy  Kansas  City  Police  Department.) 


di 


Social  Amelioration 

man  being  greater  than  his  fellows,  shall  we  say 
that  he  is  not  exclusively  entitled  to  the  fruits  of 
his  industry?  May  we  justly  require  him  to  sow 
that  others  may  reap  ?  To  do  so  would  be  to  per- 
mit the  most  ignorant  to  fix  the  standard  of  effi- 
ciency and  the  most  indolent  to  fix  the  standard  of 
industry.  It  is  especially  important,  therefore, 
that  society  refrain  from  the  bestowal  of  gifts  in 
e  form  of  privileges  from  which  the  masses  of 
men  are  debarred.  This  is,  in  effect,  giving  to  one 
person  something  which  he  has  not  earned.  When 
you  do  that  you  substract,  to  that  extent,  from  the 
potential  earnings  of  another.  The  person  so 
wronged  is  robbed — howbeit,  by  the  subtle  finger 
of  the  law.  When  you  bestow  upon  one  person 
opportunities  denied  to  another  you  subject  that 
other  to  an  undue  burden,  and  you  have  handi- 
capped him  in  the  race  of  life.  Conceding  the 
postulate  that  all  men  are  endowed  by  nature  with 
equal  rights  to  life,  liberty  and  the  pursuit  of 
happiness,  it  must  follow  that  when  society  adds 
to  that  endowment  some  special  right,  privilege 
or  opportunity  from  which  the  majority  of  men 
are  excluded,  they  who  are  so  excluded  are  by 
that  act  denied  somewhat  of  the  natural  heritage 
of  men.  Special  privileges  are  always  paid  for; 
if  by  the  holder,  and  to  the  full  extent  of  their 

169 


Causes  and  Cures  of  Crime 

value,  then  they  lose  their  character  as  special 
privileges;  if  by  the  non-holder  of  the  privilege, 
the  non-holder  is  mulcted  in  the  sum  of  whatever 
profit  may  be  derived  by  the  holder  of  the  privi- 
lege solely  as  a  result  of  the  privilege.  The  State 
has  nothing  to  give.  Considered  merely  as  an 
organized  government  it  can  possess  nothing  be- 
yond what  it  derives  from  the  property  of  indi- 
viduals, and  therefore  it  can  give  nothing  to  any 
individual  excepting  ( i )  the  property  of  some 
other  individual  or  (2)  the  power  to  take  the 
property  of  some  one  or  more  individuals.  Thus, 
If  a  tax  be  levied  upon  one  industry  and  another 
be  exempted,  both  being  in  competition,  the  un- 
burdened industry  is,  In  effect,  receiving  a  profit 
at  the  cost  of  the  other.  In  this  way  one  class  of 
people  may  be  elevated  to  opulence,  while  ^  an- 
other class,  existing  under  the  same  government, 
may  be  reduced  to  a  condition  of  involuntary  pov- 
erty approximating  serfdom.  Inequality  of  indus- 
trial opportunity  Is  often,  if  not  usually,  due  to 
these  inequalities  In  the  distribution  of  the  bur- 
dens of  taxation.  Such  Inequalities  contravene 
the  laws  of  economic  justice  and  render  exceed- 
ingly difficult,  If  not  impossible  and  entirely  abort- 
ive, all  Intermediate  efforts  at  social  Improve- 
ment. 

170 


Social  Amelioration 

While  it  is  not  to  be  doubted  that  the  utmost 
possible  degree  of  perfection  in  the  laws  and 
forms  of  government  would  by  no  means  elevate 
to  a  state  of  moral  perfection  the  citizenship  sub- 
sisting under  that  particular  government,  it  is 
also  true  that  a  thoroughly  vicious,  unwise  and  un- 
just government,  if  it  be  allowed  to  long  exist, 
will  certainly  breed  the  like  impure  conditions 
among  the  people.  Vice  alone  contaminates; 
good  principles  are  not  so  contagious.  Govern- 
ments, however,  are  usually  fairly  representative. 
They  are  typical  of  their  constituent  elements. 
The  private  life  of  a  nation  is  usually  reflected  in 
its  public  life.  No  form  of  government,  however 
just,  will  serve  as  a  substitute  for  the  virtue  and 
integrity  of  the  people.  A  righteous  people  will 
destroy  or  reform  a  vicious  government,  but  no 
government  can,  of  itself,  reform  a  thoroughly 
vicious  proletariat.  That  work  is  for  the  people 
to  do.  Reforms  should  begin  at  home.  The  "so- 
cial uplift"  should  be  preceded  by  the  individual 
uplift.  The  personal  will  to  do  right  is  the  one 
condition  precedent  to  all  social  and  economic  jus- 
tice. But  we  are  not  for  these  reasons  to  conclude 
that  society  can  do  nothing  to  improve  the  hard 
conditions  of  the  unfortunate.  Far  from  it.  To  so 
conclude  would  be  to  confess  the  total  failure  of  all 

171 


Causes  and  Cures  of  Crime 

social  organization,  to  repudiate  the  social  instinct 
among  men  and  to  thus  impeach  the  laws  of  na- 
ture. Public  efforts  at  social  amelioration  are 
but  the  natural  and  legitimate  expressions  of  the 
individual  conscience,  voicing  itself  through  the 
social  organization. 

The  author  confesses  to  a  degree  of  skepticism 
concerning  the  efficacy  of  those  remedies  which  do 
not  strike  directly  at  the  heart  of  the  social  prob- 
lem, but  he  does  not  for  that  reason  condemn  the 
various  social  and  philanthropic  schemes  which, 
through  municipal  or  State  law  or  by  reason  of 
individual  or  organized  charity  aspire  to  mitigate, 
in  some  measure,  the  sum  of  human  suffering  and 
to  better  the  conditions  of  the  human  race.  How- 
ever, neither  public  largess  nor  private  charity  can 
breed  in  the  mind  of  the  average  man  an  innate 
respect  for  law  nor  a  wholesome  regard  for  any 
government  which  he  knows  to  be  incompetent  or 
corrupt. 

The  difficulties  to  be  met  with  in  this  respect 
are  much  the  same  throughout  the  world,  and 
these  difficulties  have  existed  In  ancient  as  well  as 
in  modern  times.  Demosthenes  described  them 
in  Athens,  in  his  Third  Phllliplc.  Sallust  depicts 
the  same  conditions  among  the  Romans.  Writing 
of  Italy,  and  after  mentioning  the  evil  conditions 

172 


Social  /^melioration 

which  previously  existed  under  a  more  despotic 
government,  Lombroso^  says:  "Today  the  evil 
is  so  much  the  greater,  as  the  deputies  and  sen- 
ators are  more  numerous  and  hence  more  danger- 
ous than  kings.  It  is  easy  to  understand  why  they 
are  more  dangerous.  In  the  electoral  contest  it 
is  not  intellectual  qualities,  and  still  less  moral 
qualities  that  decide  the  victory.  Far  from  it! 
The  man  who  has  new  ideas  simply  dashes  him- 
self against  the  stone  wall  of  the  people's  con- 
servative prejudices.  He  who,  with  a  free  con- 
science, points  out  an  evil  and  proposes  a  remedy 
injures  the  interests  of  some  powerful  voters. 
The  respectable  man  who  does  not  combat  abuses 
openly  injures  no  one,  but  he  also  accomplishes 
nothing;  and  all  run  the  risk  of  being  submerged 
by  the  mediocrity  which  satisfies  the  world  with 
an  insignificant  program,  or  by  the  brazen  and 
corrupt  who  buy  the  needed  votes."  The  Italian 
criminologist  then  pleads  as  a  remedy  for  these 
conditions  that:  "The  largest  liberty  must  be 
given  to  the  press.  In  the  present  state  of  things 
the  guilty  not  only  cannot  be  accused  but,  if  they 
are  accused,  find  a  new  resource  in  their  own 
crime ;  and  they  can,  at  the  expense  of  honest  men 
and  with  the  aid  of  the  law  itself,  indemnify  them- 

*  Crime,  etc.,  p.  263. 


Causes  and  Cures  of  Crime 

selves  for  the  efforts  which  honorable  men  make 
to  expose  their  misdeeds." 

Says  the  same  author:  "One  of  the  reforms 
that  would  serve  best  to  check  political  corrup- 
tion would  be  an  extensive  decentralization.  When 
a  government,  centralized  like  the  Italian  or  the 
French,  has  the  right  to  administer  enormous 
sums  and  manage  affairs  involving  billions,  as  in 
many  of  our  public  works,  corruption  inevitably 
arises,  because  the  control  of  the  public  is  no 
longer  actively  or  directly  exercised  and  a  wider 
door  of  impunity  is  left  open.  But  if,  on  the 
other  hand,  the  public  business  has  to  be  trans- 
acted in  broad  daylight  under  the  eyes  of  all,  the 
control  will  be  more  efficacious,  and  those  weak 
persons  whom  money  might  corrupt  will  find  in 
the  publicity  of  their  acts  a  means  of  resisting 
evil."  In  his  opposition  to  the  centralization  of 
power  the  views  just  expressed  coincide  with 
those  of  Herbert  Spencer,  who  said:  "The  future 
of  society  politically  lies  in  decentralization." 
Ferri^  also  pleads  for  decentralization  of  gov- 
ernmental power  as  a  preventive  of  political  cor- 
ruption, and  likewise  urges  the  principle  of  the 
referendum  for  the  same  reasons.  Lombroso's 
advocacy  of  the  referendum  has  been  previously 

»Crim.  Soc,  p.  125. 


Social  Amelioration 

noted  (See  Chap.  II.).  A  number  of  American 
statesmen,  among  them  the  present  Secretary  of 
State  (Mr.  Byran),  President  Wilson,  and  a 
former  President,  Mr.  Roosevelt,  have  advocated 
the  referendum  for  reasons  similar  to  those  ex- 
pressed by  the  Italian  authors  quoted.  There  is 
no  doubt  that  both  the  initiative  and  referendum 
operate  as  wholesome  safeguards  against  legis- 
lative corruption.  When  the  people  are  given 
the  power  to  intercept  the  enactment  of  a  law 
there  is  less  probability  of  the  legislative  enact- 
ment of  laws  for  corrupt  purposes  or  from  corrupt 
motives.  The  incorporation  of  the  referendum 
in  the  organic  law  of  all  municipalities  would  tend 
to  prevent  the  wholesale  trafficking  in  franchises, 
which  has  disgraced  so  many  cities.  It  would 
then  be  impossible  for  the  legislative  branch  of  a 
city  government  to  grant  special  privileges  to  pri- 
vate interests  unless  a  majority  of  the  people  de- 
sired it,  for  the  people  would  always  be  able  to 
intercept  the  grant,  and  would  in  most  instances 
do  so  if  convinced  that  a  grant  had  been  cor- 
ruptly, inadvertently,  or  improvidently  made.  A 
number  of  American  states  have  incorporated 
the  initiative  and  referendum  in  their  constitu- 
tions as  an  additional  check  and  balance  upon  the 
legislative  branch  of  the  government. 

175 


Causes  and  Cures  of  Crime 

This  principle,  however,  cannot  operate  to  de- 
ter executive  officers  from  unrighteous  acts.  For 
this  reason  it  is  being  supplemented,  in  some  of 
the  States,  by  laws  which  provide  for  the  recall  of 
any  public  official  whose  acts  are  not  satisfactory 
to  the  people.  A  liberal  application  of  the  prin- 
ciple of  the  recall  would  rid  the  public  service  of 
many  corrupt,  incompetent  and  undesirable  pub- 
lic officials.  It  should,  however,  in  some  cases,  at 
least,  be  applied  to  appointive  as  well  as  to 
elective  officers.  This  would  require  every  public 
officer  to  stand  upon  his  own  merits,  and  would 
make  it  impossible  for  a  public  or  powerful  ap- 
pointing officer  to  shield  an  inefficient  or  dishon- 
est subordinate.  But  in  dealing  with  these  ques- 
tions it  should  never  be  forgotten  that  no  system 
of  government  has  ever  yet  been  devised  which 
will  protect  the  public  from  the  legitimate  con- 
sequences of  public  indifference,  ignorance  or 
vice. 

I  find  little  to  hope  for  in  a  further  extension 
of  the  suffrage.  The  French  once  thought  that 
public  suffrage  meant  popular  liberty.  This  was 
especially  true  of  the  first  revolutionists.  But  they 
afterwards  learned  how  little  we  may  expect  from 
an  electorate  governed  by  ignorance  or  swayed 
by  hysteria.    Advocates  of  the  feminine  suffrage, 

176 


Social  Amelioration 

it  is  greatly  to  be  feared,  are  unduly  optimistic  in 
their  promises  of  the  benefits  which  are  to  flow 
from  that  reform.  In  the  American  states  hav- 
ing general  or  limited  female  suffrage  there  has 
been  no  discernible  decrease  in  crime  nor  any 
great  purification  of  politics  because  of  that  re- 
form. At  any  rate,  the  social  good  to  be  derived 
cannot,  in  the  end,  compensate  its  necessarily  dam- 
aging effect  upon  society. 

If  the  human  race  is  to  continue  its  existence, 
the  vast  majority  of  women  are  destined  to  be- 
come mothers.  The  biological  objections  to  the 
public  activities  of  women  thus  become  readily  ap- 
parent. During  the  period  of  gestation  and  the 
nursing  period  beyond  (which  periods  comprise 
at  least  one-third  of  the  life  of  the  average 
woman),  there  should  be  admitted  no  new  condi- 
tions which  in  their  nature  tend  to  aggravate  the 
feminine  predisposition  to  hysteria,  unless  we  de- 
sire to  very  greatly  augment  the  birth  of  neurotic 
offspring.  The  excitement  of  political  conflict 
should  not  be  added  to  the  natural  and  unavoidable 
burdens  which  attend  upon  maternity — unless  we 
desire  to  greatly  increase  the  race  of  neuropaths. 
This  may  be  an  indelicate  view  of  women's  sacred 
right  to  "political  emancipation,"  but  future  gen- 
erations likewise  have  some  sacred  rights,   and 

177 


Causes  and  Cures  of  Crime 

one  of  them  is  the  right  to  be  born  without  the 
taint  of  nerve  degeneracy.  In  the  proper  develop- 
ment of  the  human  race  no  concern  is  of  more  vital 
importance  than  the  breeding  conditions  of  the 
human  family.  No  scientist  will  affirm  that 
motherhood  is  the  absolute  duty  of  every  woman 
born  into  the  world,  but  that  this  function  has  al- 
ways and  will  always  fall  to  the  lot  of  most  women 
none  will  deny.  In  view  of  this  certain  and  es- 
tablished fact  we  should  not  hesitate  to  regard 
the  realization  of  universal  female  suffrage  as 
almost  an  unmitigated  evil.  Nor  does  this  view 
militate  against  any  possible  broadening  of 
woman's  sphere  of  usefulness.  The  exercise  of 
the  ballot  is  by  no  means  essential  to  the  exercise 
of  woman's  power  for  good. 

Students  of  English  history  know  that  the  real 
ruler  of  Great  Britain  during  the  reign  of  George 
II.,  was  Queen  Caroline,  and  that  she  was  one  of 
the  most  sagacious  counselors  that  ever  gained 
the  ear  of  a  British  sovereign.  We  know  what 
the  companionship  of  Josephine  was  worth  to  Na- 
poleon. Gibbon  says  that  the  laws  of  Justinian 
were  attributed  to  the  sage  counsels  of  his  remark- 
able wife,  the  Empress  Theodora.  When  we  re- 
member that  Surrey  had  his  Geraldine,  Dante  his 
Beatrice,  Sidney  his  Stella,  Tasso  his  Leonora,  and 

178 


Social  Amelioration 

Petrarch  his  Laura,  we  must  know  that  literature 
has  owed  many  of  its  finer  inspirations  to 
the  influence  of  women.  Could  the  ballot 
have  yielded  a  larger  sphere  of  influence? 
All  history  is  filled  with  the  names  of  wondrous 
women. 

In  the  dim  twilight  of  the  human  story,  where 
the  horizon  of  recorded  fact  hovers  above  the 
mist  of  fable,  we  find  the  legendary  Semiramis, 
queen  of  the  Eastern  plains,  who  gave  law  to  the 
fathers  of  Abraham.  Sweeping  down  the  ages, 
on  the  same  sunny  plains  of  Mesopotamia,  we 
find  a  Median  princess,  sighing  for  her  native 
mountains,  and  her  wishes  bringing  forth  the  hang- 
ing gardens  of  Babylon;  and  in  the  West,  where 
the  curtain  of  fable  was  more  slowly  raised,  we 
behold  Helen  and  the  ruins  of  Troy;  and  Dido, 
whose  empire  began  in  a  trick  and  ended  in  a 
tragedy.  Athens  emerges  from  the  land  of  myth, 
with  the  beautiful  Ariadne,  leading  Theseus  from 
the  labyrinth.  And  Greece  passes,  with  her  As- 
pasia,  her  dancing  girls  and  her  songs.  Enter 
now  the  Romans.  One  name  is  enough  to  glorify 
the  womanhood  of  ancient  Rome — Cornelia,  the 
mother  of  the  Gracchii.  But  the  old  order  chang- 
eth;  Roman  statesmen  succumb  to  the  witching 
beauty  of  the  Nile — fair  slave  of  passion  and  of 

179 


Causes  and  Cures  of  Crime 

power — and  Cleopatra  kissed  Anthony's  empire 
away.  And  then  comes  another  age,  with  its  del- 
uge of  blood  and  darkness,  with  here  and  there 
a  figure,  like  Zenobia,  queen  of  the  East,  a  flower 
blooming  in  the  desert;  and  follow  now  the 
sainted  women  of  the  church,  whose  lives  illumine 
the  circumjacent  gloom  even  as  the  Christian 
candles  glimmered  in  the  catacombs  of  pagan 
Rome.  In  a  note  to  chapter  sixteen  of  Gibbon's 
Rome,  it  is  said  that  the  Goths  owed  their  first 
knowledge  of  Christianity  to  a  young  girl,  a  pris- 
oner of  war,  who  continued  her  exercises  of  piety 
in  the  midst  of  them. 

Approaching  the  modern  era,  we  find  the  stage 
of  history  ornate  with  the  glory  of  womanhood, 
ennobled  by  her  toils  and  sanctified  by  her  sacri- 
fices. Here  we  find  Joan  of  Arc,  the  shepherd 
maid  of  Domremy,  sweeping  like  an  archangel 
o'er  the  battlefield  to  save  the  crown  of  her  be- 
loved France ;  and  there  is  the  illustrious  Isabella 
of  Castile,  defying  the  doubts  of  men,  and  pledg- 
ing her  jewels  to  give  ships  to  Columbus;  and 
here  is  Madame  Roland,  high-priestess  of  Free- 
dom, tearing  the  mask  from  the  cruel  face  of  An- 
archy, and  going  to  her  death  with  the  cry  "O 
Liberty  I  what  crimes  are  committed  in  thy  name  I" 
while  yonder  we  behold  Maria  Theresa,   hold- 

i8o 


Social  Amelioration 

ing  aloft  before  the  Diet  of  Hungary  her  infant 
son,  and  kindling  within  the  hearts  of  her  people 
a  spirit  that  saved  the  throne  of  Austria,  firing 
the  souls  of  all,  until 

"The  fierce  Croatian,  and  the  wild  Hussar, 
With  all  the  sons  of  ravage,  crowd  the  war;" 

and  later,  through  a  rift  in  the  clouds  of  battle, 
like  a  rainbow  gleaming  above  the  storm,  we 
catch  a  glint  from  the  aureole  of  Florence  Night- 
ingale, "the  Angel  of  the  Crimea." 

When  Madame  de  Stael  challenged  Napoleon 
to  name  the  greatest  woman  in  the  world,  he  re- 
plied: "She,  madame,  who  has  borne  the  great- 
est number  of  children."  I  should  have  agreed 
with  him  fully  had  he  said:  "She  who  has  been 
the  best  and  wisest  mother."  The  mother  of  Na- 
poleon, like  the  mother  of  Washington,  was  a 
woman  of  great  good  sense  and  force  of  charac- 
ter. Abbott,  in  his  "Life  of  Napoleon,"  says  that 
"When,  at  the  command  of  Napoleon,  the  church 
bells  began  again  to  toll  the  hour  of  prayer  on 
every  hillside  and  through  every  valley  of  France 
.  .  . ;  when  the  young  in  their  nupitals  and  the 
aged  in  their  death  were  blessed  by  the  solemni- 
ties of  gospel  ministrations,  it  was  a  mother's  in- 
fluence which  inspired  a  dutiful  son  to  make  the 
magic  change  which  thus,  in  an  hour,  transformed 

i8i 


Causes  and  Cures  of  Crime 

France  from  a  Pagan  to  a  nominally  Christian 
land.  Honor  to  Letltia,  the  mother  of  Napo- 
leon!" 

What  we  owe  to  the  great  men  of  the  world, 
we  owe  primarily  to  their  mothers.  The  history 
of  the  human  race  is  twined  like  a  garland  around 
the  hearthstones  of  humanity.  A  man  may  pride 
himself  upon  a  son  whose  good  traits  bespeak  a 
great  and  good  career;  but  it  is  now  a  fairly  ac- 
cepted law  of  heredity,  established  by  the  re- 
searches of  modern  science,  that  in  most  cases  of 
normal  heredity  the  male  offspring  borrows  its 
traits  from  the  female  parent  and  not  from  the 
father.  Unfortunately,  we  know  too  little  of  the 
great  mothers  of  the  world.  Like  the  violet,  they 
blossom  in  secret  places ;  and,  as  the  whereabouts 
of  the  shrinking  flower  is  often  disclosed  only  by 
the  fragrance  it  exhales  upon  the  passing  breeze, 
so  do  we  often  discover  these  modest  women  only 
by  the  perfume  of  those  good  works  which  have 
gone  forth  from  a  secluded  home,  to  scatter  sweet- 
ness and  light  along  the  ways  of  life  and  breathe 
a  benediction  to  the  world.  One  such  there  was 
in  Nazareth. 

Hovering  along  the  sky-line  of  the  world's 
events,  like  the  fleecy,  gold-tipped  clouds  that 
mingle  their  radiance  with  the  splendors  of  de- 

j82 


Social  Amelioration 

parting  day,  now  floating  into  view,  now  fading 
into  night,  are  these  great  mother-spirits  of  the 
world;  always  distant,  beautiful,  retreating,  van- 
ishing. The  mother-spirit!  always,  everywhere 
and  forever  hallowed  by  the  touch  of  baby  fingers, 
and  crooning  the  lullaby  that  sweetens  life,  sanc- 
tifies the  heart  and  makes  for  human-kind  a  home. 
Here  sits  woman  upon  her  proper  throne,  en- 
nobled and  dignified  beyond  the  power  of  politi- 
cal caprice  or  governmental  whim;  place  her  up- 
on the  hustings,  and  she  becomes  the  buffoon's 
jibe  and  the  scoffer's  jest.  All  the  political  rights 
the  world  has  yet  conceived  will  not  be  worth 
what  it  will  cost  society  to  make  that  change. 

The  present  sex  disturbance  which  appears  now 
to  converge  upon  England  is  by  no  means  with- 
out substantial  British  precedent.  In  1642  Ann 
Stugg,  the  wife  of  a  London  brewer,  led  a  dele- 
gation of  English  women  to  the  door  of  the  House 
of  Commons  demanding  women's  rights.  Similar 
disturbances  superinduced  by  the  uxorious  gal- 
lantry of  hyperassthetic  men,  have  occurred  else- 
where— notably  in  ancient  Rome,  where  the  Elder 
Cato  once  felt  constrained  to  deliver  a  speech  in 
the  Roman  Senate  against  the  intermeddling  of 
the  Roman  matrons  in  politics.  But  the  causes 
of  these  disturbances  are  to  be  sought  primarily 

183 


Causes  and  Cures  of  Crime 

not  In  the  realm  of  economics,  but  in  the  field  of 
sexual  psycopathy,  and  the  remedy  is  more  likely 
to  be  found  in  Krafft-Ebing  than  in  Karl  Marx. 
Anthropologically  considered,  the  women's  suf- 
frage propaganda  may  be  regarded  as  an  atavistic 
movement.  Lester  F.  Ward,  in  his  "Pure  Soci- 
ology," argues  that  in  the  earliest  dawn  of  human 
existence  woman  was  the  only  sex,  and  that  man 
was  at  first  a  mere  parasite  upon  her,  and  I  be- 
lieve that  most  sociologists  are  now  of  opinion 
that  the  savage  peoples  all  passed  through  what 
is  called  a  "matriarchal  stage,"  in  which  descent 
was  traced  through  the  woman  exclusively  and  in 
which  woman  was  the  dominant  sex.  Conceding 
the  correctness  of  this  hypothesis  there  can  be  no 
doubt  that  the  establishment  of  the  female  suf- 
frage is  a  step  toward  reversion  to  a  primitive  type 
of  society  and  is  thus  a  social  atavism.  It  were 
quite  needless  to  add  that  the  prompt  repudia- 
tion or  repression  of  all  atavistic  tendencies  is  a 
condition  precedent  to  a  healthy  social  growth. 
And,  aside  from  all  this,  the  sexual  characteris- 
tices  of  the  female  forbid  the  assumption  of  the 
same  duties  and  responsibilities  as  the  male.  The 
menstrual  period  alone  supplies  an  incisive  psychic 
as  well  as  physical  distinction  between  the  sexes. 
Krafft-Ebing,  Westphal,  Tuke,  Pelmann,  Mabille, 

184 


Social  Amelioration 

Phlloindicus,  Bartel,  Ball,  Kirm,  Hugo  Miller, 
Girand  and  other  noted  scientists  have  collected 
numerous  cases  showing  the  nerve  storms  and 
emotional  instability  which  are  common  at  this 
period,  or  which  arise  from  its  delay,  suppres- 
sion or  excess,  and  which  sometimes  result  in 
crime.  Says  Dr.  Hall*  on  this  subject:  "Excite- 
ment, rising  sometimes  to  mania,  depressing 
states  shading  toward  suicide,  aches,  tensions, 
flaccidities,  pains  local  and  general,  imperative 
ideas,  impulsive  acts  as  violence  to  others,  setting 
of  fires,  perversion  of  appetite,  praecordial  anx- 
iety, sleeplessness,  delusion  of  persecution,  ner- 
vous coughs,  irritability,  etc.,  and  crimes  done  in 
epileptoid  and  more  or  less  unconscious  states, 
fear  and  vague  dreads,  aptly  characterized  by 
Cowles  as  fear  of  fear,  religious  states  of  con- 
sciousness of  abnormal  intensity  or  kind,  a  series 
of  such  phenomena  more  or  less  pronounced  and 
repeated  with  great  uniformity  every  twenty- 
eight  days  for  years,  or  as  in  other  cases  so  pro- 
tean that  no  two  periods  are  alike,  sometimes  pre- 
ceding, sometimes  during,  and  sometimes  after 
the  flow  itself,  gravely  complicates  all  classes  of 
legal  responsibility."  They  should  also,  it  seems, 
tend  to  complicate  political  responsibility,  and  it 

*  Psychology,  etc.,  pp.  888-9. 


Causes  and  Cures  of  Crime 

is  difficult  to  perceive  the  advantages  which  are 
to  accrue  from  a  wholesale  recruiting  of  the 
electorate  from  persons  liable  to  be  so  mentally 
and  physically  incapacitated  every  four  weeks. 
The  baneful  effects  of  the  feminine  suffrage  upon 
a  civilized  nation  would  not  be  noticeable  in  a 
year  or,  perhaps,  in  a  generation;  but  its  certain 
contravention  of  biologic  law  would  in  the  course 
of  generations  bring  a  retribution  none  the  less 
severe  because  so  slowly  manifest. 

There  are  voters  enough  and  to  spare.  What 
we  need  to  do  is  to  increase  the  quality  of  the 
suffrage;  not  its  quantity.  Good  citizenship  re- 
quires unceasing  attention  to  public  affairs;  for 
liberty,  like  all  things  truly  valuable,  cannot  be 
gained  or  kept  without  great  effort,  and  It  re- 
mains not  long  with  the  undeserving.  Civil  lib- 
erty is  always  in  danger.  It  is  so  from  its  very 
constitution,  being  in  its  perfection  but  an  equi- 
poise of  contending  forces.  Nations  have  seldom 
lost  their  liberties  in  the  shock  of  battle.  Baby- 
lon had  fallen  long  before  she  saw  the  handwrit- 
ing on  the  wall.  So,  too,  in  their  turn,  fell  the 
conquering  Persians,  when  blinded  by  the  glitter 
of  gold  and  corrupted  and  enfeebled  by  the  vices 
of  wealth.  If  Alexander  had  never  been,  the 
empire  of  the  Great  King  would  have  perished 

i86 


Social  Amelioration 

just  the  same.  Greece,  also,  had  fallen  long  be- 
fore Chaeronea.  As  the  Prince  of  Orators  said 
to  his  degenerate  countrymen:  "If  Phillip  were 
dead  you  would  raise  up  another  Phillip  to  fight 
against  you."  No  barbarous  Goth  was  necessary 
to  complete  the  extinction  of  Roman  liberty.  And 
so  it  has  ever  been.  The  decay  of  a  nation,  like 
that  of  an  oak,  begins  at  its  heart.  When  the 
symptoms  become  plainly  visible  it  is  usually  too 
late  to  apply  the  remedy.  But  although  most 
of  the  various  schemes  of  social  improvement  are 
not  universally  and  permanently  effective  because 
not  fundamental,  yet  many  of  them  are  at  least 
of  temporary  value.  Such  treatment  of  social  dis- 
ease may  be  likened  to  "emergency  treatment"  in 
the  medical  science. 

There  are  many  reforms  which  would  tend  to 
promote  public  justice,  and  to  create  a  greater  re- 
gard for  the  laws.  Prof.  Maurice  Parmelee  of 
the  Department  of  Sociology  in  the  University  of 
Missouri,  in  chapter  8  and  9  of  his  "Principles  of 
Anthropology  and  Sociology,"  exhaustively  dis- 
cusses the  theory  of  public  defense  in  criminal 
prosecutions,  and  gives  brilliant  support  to  the 
arguments  of  Ferri  and  Lombroso,  both  of  whom 
have  advocated  a  "public  defender"  for  those  ac- 
cused of  crime.     Although  the  accused  has  long 

187 


Causes  and  Cures  of  Crime 

had  the  doubtful  benefit  of  the  "presumption  of 
innocence"  (theoretically,  at  least)  society  has 
really  been  a  long  time  arriving  at  the  idea  that 
the  accused  is  really  possessed  of  rights  which 
the  State  Is  bound  to  safeguard.  Until  1836  the 
accused  was  not  permitted,  in  England,  to  em- 
ploy counsel  in  his  own  defense,  and  he  had  no 
such  right  at  common  law. 

By  what  process  of  reasoning  are  we  to  reach 
the  conclusion  that  society  should  be  more  Inter- 
ested In  the  conviction  of  the  guilty  than  in  the  ac- 
quittal of  the  Innocent?  Society's  first  duty,  it 
would  appear,  should  be  to  protect  the  innocent. 
It  is  a  cardinal  principle  of  criminal  jurisprudence 
that  every  person  charged  with  crime  is  presumed 
Innocent  until  his  guilt  is  made  to  clearly  appear 
from  the  evidence  adduced  at  the  trial,  and  that 
this  presumption  of  innocence  is  a  continuing  one 
and  attends  the  prisoner  throughout  the  trial  until 
broken  down  by  convincing  evidence  of  his  guilt. 
If  we  believe  that,  why  does  the  State  employ 
salaried  counsel  to  secure  convictions,  while  the 
prisoner  who  happens  to  be  without  sufficient 
means  to  fee  a  lawyer  Is  relegated  to  a  defense 
upon  the  part  of  an  attorney  appointed  by  the 
court  to  serve  without  compensation?  Good  law- 
yers, It  Is  true,  are  sometimes  appointed  by  the 

188 


Social  Amelioration 

court  in  these  so-called  pauper  cases.  But  they 
always  regard  it  as  a  hardship,  and  while  there 
are  on  record,  in  such  trials,  some  conspicuous  ex- 
amples of  a  lawyer's  devotion  to  the  ethics  of  his 
profession,  every  lawyer  knows  that  the  first 
thing  usually  suggested  to  the  client  in  these  cases 
is  a  plea  of  guilty,  the  inevitable  alternative  of 
which  is  a  half-hearted  defense.  I  believe  that 
the  points  made  in  behalf  of  the  public  defender 
are  well  taken.  Moreover,  he  should,  as  a  rep- 
resentative of  the  State,  appear  in  all  criminal 
trials  in  behalf  of  the  accused,  if  we  are  to  ac- 
cept the  theory  that  the  State  is  in  all  cases  as 
vitally  interested  in  establishing  innocence  as  it  is 
in  proving  guilt. 

Another  reform,  equally  necessary,  and  closely 
allied  with  the  one  just  discussed,  is  the  proposi- 
tion to  make  reparation,  out  of  the  public  treas- 
ury, to  persons  wrongfully  prosecuted,  or  at  least 
to  those  wrongfully  convicted  of  crime.  This  re- 
form has  been  advocated  by  Bentham  and  Garo- 
falo,  and  in  France  by  Necker,  Pastoret,  Voltaire, 
Merlin,  Legraverand,  Helie,  Tissot,  Marsangy, 
and  many  others;  in  Italy  by  Carrara,  Pessina  and 
Brussa;  in  Germany  by  Geyer  and  Schwartze;  in 
the  United  States  by  Parmelee  and  others,  and  by 
lawyers  and  publicists  generally  in  all  parts  of  the 

189 


Causes  and  Cures  of  Crime 

civilized  world.  But,  to  this  time,  the  principle 
seems  to  have  found  recognition  only  in  the  laws 
of  Hungary,  Mexico,  Portugal,  Sweden,  Den- 
mark, Switzerland  and  some  of  the  German 
states. 

Why  any  state  or  sovereignty  should  be  al- 
lowed to  unjustly  and  wrongfully  bring  about  the 
conviction  of  an  innocent  person  of  a  heinous 
crime,  without  making  any  reparation  at  all  to 
the  accused  or  his  family,  is  beyond  the  power  of 
rational  conception.  Here  is  at  least  one  instance 
(and  a  conspicuously  glaring  and  serious  one) 
in  which  our  boasted  maxim  of  uhi  jus  ibi  reme- 
dium  does  not  apply.  Why  this  strange  incon- 
gruity has  remained  in  the  law  is  difficult  to  im- 
agine. In  a  number  of  instances  innocent  men 
have  been  convicted  of  capital  crimes,  and  some 
have  been  actually  put  to  death.  (See  Wills  on 
Circumstantial  Evidence.)  Is  it  possible  to  con- 
ceive of  a  more  revolting  and  hideous  wrong?  If 
such  injustice  is  to  meet  with  the  sanction  of  the 
law  and  with  the  approval  of  society,  are  we  to 
blame  a  man  for  harboring  anti-social  instincts? 
I  found  a  man  in  the  Missouri  penitentiary  serv- 
ing a  five-year  sentence  for  highway  robbery.  His 
case  had  been  passed  upon  by  the  Supreme  Court 
and  the  judgment  affirmed.    After  he  had  served 

190 


Social  Amelioration 

two  years  as  a  felon  his  innocence  was  established 
beyond  the  possibility  of  doubt.  Damage?  No 
man  could  suffer  greater  damage.  Yet  it  was 
damnum  absque  injuria.  Damage  without  injury ! 
Because,  forsooth,  "the  State  can  do  no  wrong!" 
When,  by  command  of  the  chief  executive  of  the 
State,  I  placed  a  pardon  in  the  hand  of  that  man, 
that  document  should  have  been  accompanied  by 
the  check  of  the  State  Treasurer  for  a  sum  which 
might  at  least  in  some  measure  have  shown  the 
disposition  of  society  to  compensate  the  damage. 
In  many  such  cases  complete  reparation  is  impos- 
sible, but  at  least  a  partial  compensation  should 
be  offered. 

Compensation  to  the  dependent  members  of  the 
convict's  family  has  likewise  become  a  topic  of  dis- 
cussion among  criminologists  and  publicists.  It 
is  a  fundamental  and  constitutional  principle  of 
American  law  that  "no  conviction  shall  work  cor- 
ruption of  blood  or  forfeiture  of  estate."  But 
we  violate  that  principle  whenever  we  starve  a 
man's  wife  and  children  in  order  to  confine  him  in 
a  prison  where  his  earnings  are  confiscated  by  the 
State  or  sold  to  the  slave-drivers  of  the  contract 
labor  system.  American  States  and  municipali- 
ties have,  however,  made  some  progress  with  this 
reform.    We  have  what  is  known  as  the  Detroit 

191 


Causes  and  Cures  of  Crime 

System.  The  city  of  Detroit  has  been  working 
under  an  ordinance  adopted  June  14,  19 10,  which 
is  as  follows: 

"Section  i. — It  shall  be  the  duty  of  the  board 
pf  inspectors  of  the  Detroit  House  of  Correc- 
tion, and  they  are  hereby  authorized,  to  pay  di- 
rectly to  the  board  of  poor  commissioners  of  De- 
troit, from  surplus  funds  under  their  control,  the 
sum  of  five  thousand  dollars  on  July  i,  19 10,  and 
on  July  I  St  each  subsequent  year. 

"Sec.  2. — It  shall  be  the  duty  of  the  poor  com- 
missioners of  the  city  of  Detroit,  after  due  inves- 
tigation and  as  its  discretion  may  direct,  to  dis- 
tribute said  money  to  those  dependents  of  resi- 
dents of  Detroit,  the  head  of  whose  household 
is  detained  in  the  Detroit  House  of  Correction, 
under  such  rules  and  regulations  as  may  from 
time  to  time  be  adopted  by  the  board  of  poor 
commissioners. 

"Sec.  3. — This  ordinance  shall  apply  only  to 
cases  where  the  prisoner  has  been  committed  for 
a  longer  period  than  thirty  days  from  a  court 
within  the  city  of  Detroit,  and  where  It  Is  shown 
that  the  prisoner  has  left  unprovided  for  a  wife 
and  one  or  more  children  under  the  age  of  15 
years,  or  other  dependent  who  resides  within  the 
limits  of  said  city." 

The  practical  operation  of  this  ordinance  will 
appear  from  a  brief  extract  from  a  paper  read 

192 


PLATE    X.— BURGLARY   TYPES. 
{Courteiy  Kansas  City  Police  Departmtnt  ) 


Social  Amelioration 

before  the  meeting  of  the  American  Prison  Con- 
gress, at  Omaha,  in  19 ii,  by  Mr.  Wm.  H.  Venn, 
parole  officer  of  Detroit,  viz. : 

"This  ordinance  has  been  in  operation  over 
one  year.  It  provides  that  the  sum  of  $5,000  be 
placed  to  the  credit  of  the  Poor  Commission, 
yearly,  through  which  commission  distribution  is 
to  be  made  to  the  families  of  these  prisoners. 
The  year  which  ended  June  30,  191 1,  saw  $3,- 
355.50  thus  expended,  which  was  applied  to  the 
relief  of  360  wives  and  children  of  persons  con- 
fined in  the  house  of  correction." 

The  State  of  Minnesota  has  enacted  the  fol- 
lowing law: 

"Section  i. — That  the  state  board  of  control 
be,  and  it  is  hereby  authorized  and  empowered  to 
provide  for  the  payment  to  prisoners  confined  in 
the  state  prison  or  in  the  state  reformatory  of 
such  pecuniary  earnings  and  for  the  rendering  of 
such  assistance  as  it  may  deem  proper,  under  such 
rules  and  regulations  as  it  may  prescribe.  Such 
earnings  shall  be  paid  out  of  the  fund  provided 
for  the  carrying  on  of  the  work  in  which  the  pris- 
oner is  engaged  when  employed  on  state  account, 
and  by  the  contractor  when  the  prisoner  is  em- 
ployed under  contract;  and  such  assistance,  when 
allowed,  shall  be  paid  out  of  the  current  expense 
fund  of  the  institution. 

"Sec.  2. — Any  money  arising  under  section  i 
193 


Causes  and  Cures  of  Crime 

of  this  act  shall  be  and  remain  under  the  control 
of  the  state  board  of  control,  to  be  used  for  the 
benefit  of  the  prisoner,  his  family  or  dependent 
relatives,  under  such  regulations  as  to  time,  man- 
ner and  amount  of  disbursement  as  the  board 
may  prescribe.  But,  should  such  prisoner  wilfully 
escape  from  the  state  reformatory  or  the  state 
prison,  or  become  a  fugitive  from  justice,  or 
commit  any  breach  of  discipline  at  either  institu- 
tion, the  said  board  of  control  may,  in  its  discre- 
tion, cause  the  forfeiture  of  all  earnings  remaining 
to  the  prisoner's  credit,  and  the  same  shall  be  re- 
placed in  the  fund  from  which  it  was  originally 
taken." 

Mr.  Frank  L.  Randall,  of  St.  Cloud,  Minne- 
sota, had  this  to  say  at  the  Omaha  Prison  Con- 
ference of  191 1,  regarding  the  operation  of  this 
law: 

"Under  the  authority  contained  in  this  act,  the 
state  board  of  control  prescribes  the  payment  of 
wages  In  different  grades  on  a  certain  scale.  For 
instance,  the  maximum  is  12  cents  a  day,  or  15 
cents  a  day,  under  certain  conditions,  provided 
that  the  conduct  Is  reported  i,  the  labor  i,  school 
work  I.  That  Is  the  highest  mark.  If  any  one 
of  these  three  features  is  lacking  to  any  extent 
he  would  get  a  little  less.  It  Is  also  provided,  in 
cases  of  exceptional  merit,  which  would  Include 
valuable  service,  the  state  board  of  control, 
on  the  recommendation  of  the  executive  head  of 

194 


Social  Amelioration 

the  institution,  may  add  50  per  cent  to  the  maxi- 
mum. 

"Under  this  arrangement  the  prisoners  are  re- 
quired to  save  enough  money  to  fit  themselves 
with  clothing,  transportation  and  other  things  that 
they  will  need  upon  leaving  the  reformatory  or 
prison,  and  some  pocket  money  besides,  in  addi- 
tion to  which  we  retain  at  least  ten  dollars  in  our 
hands,  so  as  to  aid  them  in  case  of  emergency. 
Out  of  this  money  they  may  send,  from  time  to 
time,  such  moneys  as  it  seems  proper  for  them  to 
send  to  their  dependents  or  to  their  friends, 
whether  dependent  or  not,  or  to  their  relatives  in 
any  part  of  the  world. 

"In  the  last  ten  months  we  have  aided  13  fami- 
lies by  direct  appropriations  regardless  of  merit. 
We  have  made  something  like  55  payments  to 
them,  the  total  amount  being  under  $1,000.  .  .  . 
With  our  present  population  of  something  like 
400,  taking  into  account  the  fact  that  many  of 
them  are  non-residents,  perhaps  some  two  or 
three  thousand  dollars  would  be  sufficient  to 
piece  out  and  answer  the  purpose  which  this  act 
aims  at. 

"I  suppose  it  is  safe  to  say  that,  in  a  good  many 
instances  during  the  last  year,  the  wife  with  a 
child  or  two,  or  maybe  in  some  cases  three  or 
four  children,  has  been  aided  sufficiently  so  that 
she  has  not  suffered  harsh  deprivation  and  has 
kept  her  brood  together,  where  otherwise  she 
would  not  have  done  it,  and  we  find  the  effect  on 
the  man  is  most  encouraging  if  the  man  has  any- 

195 


Causes  and  Cures  of  Crime 

thing  like  an  ordinary  fair  appreciation  of  his  du- 
ties as  a  husband  and  father,  or  as  a  son  to  a 
widowed  mother,  or  to  a  helpless  father  or 
mother." 

Relief  is  provided  for  families  of  convicts  in 
the  District  of  Columbia  by  an  act  of  congress 
approved  March  23,  1906,  in  the  sum  of  fifty 
cents  per  day  to  the  family  for  each  day's  labor 
by  the  convict.  The  law  is  confined  in  its  opera- 
tion to  cases  of  abandonment,  wilful  neglect  and 
nonsupport.  Judge  William  H.  DeLacey  of  the 
Juvenile  Court  summarizes  the  effect  of  this  law 
as  follows:  "The  enforcement  of  the  nonsup- 
port law  has  done  much  to  correct  juvenile  crime. 
The  family  is  the  true  unit  in  the  state;  the  child 
is  but  the  fraction.  To  reduce  evils  in  the  home 
is  oftentimes  to  rout  out  the  efficient  cause  of  the 
child's  delinquency."  Judge  DeLacey's  view  sug- 
gests the  remark  of  Father  Thomas  J.  Moran, 
who  said,  at  the  Second  National  Conference  of 
Catholic  Charities,  held  at  Washington,  D.  C, 
in  1912:  "There  are  really  no  delinquent  boys, 
but  there  are  delinquent  parents.  Delinquency  is 
on  the  part  of  the  parents,  and  if  I  could  only  get 
at  the  parents  that  would  be  a  long  way  toward 
solving  the  problem." 

The  Detroit  plan  has  been  adopted  by  the  state 
196 


Social  Amelioration 

of  Maine.  Missouri  enacted  a  law  in  1907  set- 
ting aside  five  per  cent  of  the  earnings  of  peniten- 
tiary convicts  for  the  benefit  of  their  families, 
when  employed  under  contract,  or  an  amount 
equivalent  thereto  if  employed  by  the  State.  But 
the  Missouri  law,  for  some  reason,  has  up  to  this 
time  never  been  put  into  operation. 

In  all  these  laws,  the  relief  is  made  to  depend 
upon  the  good  conduct  of  the  prisoner,  and  in  no 
case  has  society  unequivocally  recognized  the 
right  of  the  families  of  convicts  to  any  part  of  the 
earnings  of  the  prisoners  while  confined.  The 
wife  and  children  of  every  man  have  a  right  to 
support  out  of  his  income.  This  is  recognized 
by  the  laws  of  all  civilized  countries.  How,  then, 
and  by  what  natural  right  do  we  deprive  the  wife 
and  children  of  this  property  right  without  just 
compensation?  The  children  of  convicts  are  al- 
ready under  a  heavy  handicap.  They  must  com- 
bat the  possibility  of  inherited  criminal  tenden- 
cies and  the  certain  influence  of  criminal  environ- 
ments, besides  the  contempt  of  society  and  the 
shame  of  criminal  parentage.  Is  it  right  to  add 
to  this  the  additional  burden  of  enforced  fKJverty? 
It  is  true  that  under  the  "poor  laws"  of  most 
states  and  countries  these  dependents  may  re- 
ceive small  stipends  from  the  pauper  fund.    Is  it 

197 


Causes  and  Cures  of  Crime 

best  to  thus  pauperize  them?  Would  it  not  be 
better  for  society  to  recognize  the  right  of  the 
wife  and  children  to  the  earnings  of  the  husband 
and  father?  To  do  otherwise  Is  to  confiscate  that 
which  belongs  to  them,  and,  while  punishing  the 
convict,  to  Inflict  the  heaviest  penalty  upon  the  in- 
nocent and  helpless  victims  whom  he  leaves  out- 
side the  prison  walls.  Public  aid  of  the  kind  here 
suggested,  when  properly  administered,  ought  to 
improve  the  home  conditions  in  the  families  of 
convicts.  The  conviction  Is  yearly  growing 
stronger  among  students  of  crime  and  its  causes, 
that  in  order  to  check  the  growth  of  criminality 
we  must  begin  with  the  children.  Don  Bosco 
demonstrated  that  in  Naples,  and  Bernardo  dem- 
onstrated It  in  London.  The  brethren  of  St.  Fran- 
cis de  Sales  are  demonstrating  It  throughout  the 
world,  and  the  Juvenile  Courts  are  daily  confirm- 
ing this  theory  in  every  American  state.  Rev. 
James  Donahue,  of  St.  Paul,  Minnesota,  after  an 
exhaustive  study  of  conditions  in  his  city  in  19 12, 
declared  that  juvenile  delinquency  is  due  to  the 
following  domestic  conditions:  Death  of  father 
or  mother,  invalid  condition  or  prolonged  and 
Impoverishing  illness  of  father  or  mother,  mental 
deficiency  of  father  or  mother,  insanity,  desertion, 
divorce,  imprisonment  of  the  head  of  the  house, 

198 


Social  /^melioration 

constant  quarreling,  loss  of  religious  faith  on  part 
of  parents  and  consequent  lack  of  religious  train- 
ing of  children,  intemperance,  laziness,  insuffi- 
cient income,  love  of  pleasure,  especially  craze  for 
theatre-going,  bad  housekeeping,  general  immoral- 
ity, and  the  occasional  keeping  of  a  roomer  whose 
influence  over  the  home  is  bad.  Some  of  these 
factors  in  the  genesis  of  crime  will  not  be  ac- 
cepted as  vital  or  controlling,  but  that  bad  home 
environment  and  lack  of  moral  and  industrial 
training  are  chief  among  the  destroyers  of  chil- 
dren none  will  deny.  This  fact  is  now  generally 
recognized.  During  the  year  191 1  there  were 
15,163  children  arraigned  before  the  Children's 
Court  of  New  York  City.  Of  the  total  number 
it  was  finally  found  necessary  to  commit  only 
3,297,  and  Patrick  A.  Whitney,  Commissioner  of 
Corrections,  states  that  nearly  all  these  were 
"sent  to  about  forty  institutions  of  denomina- 
tional character,  where  religious  instruction  is 
given,  in  addition  to  educational  and  industrial 
training." 

Commissioner  Whitney's  idea  is  to  first  find  the 
causes  of  delinquency  so  that  effective  treatment 
may  be  administered.  Is  the  child  corrigible  or 
incorrigible?  If  he  is  corrigible  it  is  the  duty  of 
the  parents  or  guardian  to  endeavor  by  proper 

199 


Causes  and  Cures  of  Crime 

methods  to  correct  his  faults.  If,  on  the  other 
hand,  he  be  found  incorrigible,  physical  restraint 
in  some  institution  is  the  one  means  of  preventing 
him  from  becoming  an  actual  criminal.  Dean 
Arthur  Holmes  of  the  Pennsylvania  State  Col- 
lege, states  that  when  delinquents  appear  for  clin- 
ical examination,  inquiry  is  made  of  the  parents 
or  guardian  of  the  child  for  the  purpose  of  secur- 
ing a  narrative  of  his  life  history,  including  espe- 
cially a  detailed  account  of  his  conduct  and  of 
any  causes  that  may  have  brought  about  his  moral 
deficiency.  From  the  personal  history  of  the 
child  he  passes  back  to  the  family  history,  mak- 
ing note  of  any  hereditary  influences  that  may  ap- 
pear. After  the  oral  examination  comes  the 
usual  physical  examination  for  the  purpose  of  dis- 
closing the  presence  of  removable  defects  or  per- 
manent stigmata.  Then  the  mental  examination 
follows,  revealing  the  presence  of  any  defect  in 
mentality.  To  these  reports  a  sociological  ex- 
amination may  be  added,  because  neighborhood, 
home  life  and  moral  training  have  much  to  do 
with  moral  incorrigibility.  Inquiry  must  also  be 
carefully  made  into  the  nature  of  his  acts  to  ascer- 
tain their  relation,  first,  to  the  impulses  or  in- 
stincts giving  rise  to  them,  and,  secondly,  to  the 
purpose  or  end  that  was  intended  to  be  accom- 

200 


Social  Amelioration 

plished.  Dean  Holmes  cites  numerous  cases 
where  investigation  showed  that  delinquency  was 
the  result  of  disease  in  early  life,  scarlet  fever  and 
diphtheria  having  left  their  marks  on  the  mental- 
ity of  the  sufferers  from  these  diseases.  The  in- 
tellectual faculties  were  so  injured  as  to  prevent 
the  performance  of  rational  acts  of  conduct.  He 
also  states  that  falls,  injuries,  blows  upon  the  head 
or  other  physical  shocks  should  be  investigated, 
but  should  not  be  given  too  much  weight  unless 
the  series  of  bad  actions  begin  immediately  after 
such  injuries.  When  bad  heredity  and  bad  en- 
vironment coalesce  in  one  individual;  when  to 
these  are  added  physical  defects,  the  physical  and 
moral  diseases  of  a  pauperized  home,  neglect  of 
training,  and  a  neighborhood  destitute  of  any  up- 
lifting circumstances,  moral  delinquency  is  sure  to 
follow.  Commissioner  Whitney  states  also  that 
the  plans  of  investigation  outlined  by  Dean 
Holmes  are  now  being  followed  by  Dr.  Geo.  M. 
Parker  at  the  City  Prison  of  New  York,  com- 
monly called  the  "Tombs." 

It  is  the  opinion  of  this  New  York  investigator 
that  Juvenile  reform  is  best  accomplished  in  the 
country,  where  the  child  will  have  opportunity  to 
work  in  the  open  fields  and  be  brought  closer  to 
nature,  and  where  he  may  be  housed  in  a  cottage 

20I 


Causes  and  Cures  of  Crime 

free  from  prison  atmosphere.  This,  also,  is  Dr. 
Bernardo's  plan.  The  city  of  New  York  in  1912 
appropriated  $550,000  for  the  establishment  of 
such  an  institution  in  the  country.  A  number  of 
institutions  in  New  York  are  now  operating  along 
these  lines,  among  them  the  Agricultural  School 
connected  with  the  Catholic  Protectory,  the  Juve- 
nile Asylum,  the  Hebrew  Home  at  Hawthorne, 
New  York,  and  the  State  Agricultural  Society  at 
Rochester.  The  "industrial  farm,"  as  a  place  of 
detention  for  juvenile  delinquents,  is  becoming  an 
adjunct  to  many  cities. 

The  benign  and  helpful  functions  of  the  Juve- 
nile Court  are  being  yearly  given  a  wider  activity. 
The  system,  at  first  confined  to  a  few  metropoli- 
tan cities,  has  within  a  decade  spread  through  the 
United  States.  Every  year  sees  new  amendments 
to  State  laws,  extending  the  scope  of  its  activities 
and  broadening  the  field  of  its  usefulness.  In  Mis- 
souri, the  legislature  of  19 13  vested  some  of  the 
powers  of  juvenile  courts  in  the  probate  judges 
of  the  various  counties.  The  tendency  to  take 
the  child  offender  away  from  the  atmosphere  of 
the  criminal  courts  is  one  of  the  most  hopeful  in- 
dications of  our  times.  The  system  is  too  newly 
established  to  permit  of  a  final  statistical  demon- 
stration of  its  merits,  but  because  of  the  unques- 

202 


Social  Amelioration 

tioned  correctness  of  its  tendencies  and  the  bene- 
ficial results  thus  far  experienced  we  may  look 
forward  with  confidence  to  a  substantial  decrease 
of  youthful  criminality.  The  usefulness  of  the 
juvenile  court  may  be  vastly  increased  by  the  as- 
sistance rendered  to  probation  officers  by  socie- 
ties, individuals  and  philanthropic  institutions. 
Thus,  in  the  city  of  Pittsburgh,  the  Knights  of 
Columbus,  a  fraternal  order,  employs  out  of  its 
own  funds  probation  officers  to  assist  the  regular 
officials  of  the  juvenile  courts. 

Societies  for  the  aid  of  discharged  convicts  have 
in  some  instances,  no  doubt,  greatly  retarded  the 
tendency  to  recidivation.  Few  objects  bearing  the 
semblance  of  man  are  more  pitiable  and  helpless 
than  the  human  being  who  walks  out  of  the  peni- 
tentiary without  means  and  without  influential 
friends,  and  carrying  with  him  only  the  memory 
of  his  criminal  association  in  prison — and  the  in- 
delible brand  of  the  ex-convict.  In  a  few  of  the 
United  States,  notably  in  Massachusetts,  these 
societies  have  accomplished  much  good,  but  their 
existence  is  not  general  in  the  United  States.  The 
proper  function  of  the  "Aid  Society  for  Dis- 
charged Prisoners"  is  to  provide  remunerative 
employment  and  wholesome  environment.  Such 
societies  exist  in  England,  Prussia,  Switzerland, 

203 


Causes  and  Cures  of  Crime 

Denmark,  Sweden,  Belgium,  Holland,  Italy,  Rus- 
sia, and  Austria.  Through  these  social  activities 
many  have  been  prevented  from  returning  to 
crime. 

The  growth  and  maintenance  of  philanthropic 
institutions  of  various  kinds  are  accompanied  by 
a  substantial  decrease  in  crime.  This  is  shown  by 
the  examples  of  London  and  Geneva.  Lombroso 
found  London  to  be  the  least  criminal  of  the  great 
capitals  of  the  world,  and  Geneva  is  one  of  the 
few  European  cities  in  which  crime  has  during 
some  years  shown  a  steady  decrease.  There  are 
1 20  institutions  in  London,  such  as  60  orphan- 
ages, 21  employment  societies,  40  night  and  vaca- 
tion schools,  84  for  the  aid  of  ex-convicts,  36  of 
which  are  for  female  offenders,  and  68  mutual  aid 
societies.  It  is  said  that  more  than  200,000  per- 
sons each  year  are  assisted  by  these  London  phi- 
lanthropic societies.  The  English  National  Soci- 
ety for  the  Prevention  of  Cruelty  to  Children 
has  rescued  more  than  100,000  children  in  ten 
years. 

But,  in  this  respect,  the  social  activities  of  Ge- 
neva are  more  extensive  than  those  of  London. 
In  Geneva  there  are  more  than  400  such  insti- 
tutions, including  those  which  provide  public 
baths,    home    protection,    recreation,    industrial 

204 


Social  Amelioration 

training,  music,  asylums  for  fallen  women,  un- 
employed women,  people's  kitchens,  free  lectures, 
etc.,  etc. 

The  majority  of  the  larger  American  cities  pro- 
vide for  free  concerts  in  the  public  parks  in  the 
summer  season,  but  no  facilities  are  afforded  for 
free  musical  training  outside  the  public  school — 
and  public  school  music  in  the  smaller  cities  and 
towns  is  remarkably  crude.  Dr.  Hall  declares 
that  the  influence  of  music  is  especially  potent 
during  the  period  of  adolescence  and  that  "for  the 
average  youth  there  is  probably  no  such  agent  for 
educating  the  heart  to  love  of  God,  home,  na- 
tion and  country,  and  of  cadencing  the  whole  emo- 
tional nature,  and  hence  there  is  no  aspect  of  our 
educational  life  more  sad  than  the  neglect  or  per- 
version of  musical  training  from  this  its  supreme 
end."  Music  can,  indeed,  "soothe  the  savage 
breast."  This  is  no  figment  of  the  poet's  fancy. 
Its  salutary  influence  upon  the  insane  is  well 
known,  and  I  have  often  witnessed  its  good  ef- 
fects in  penitentiaries.  The  principle  of  public 
education,  so  widely  diffused  in  the  United  States, 
should  be  extended  to  include  free  concerts  and 
free  public  lectures  at  stated  intervals.  The  won- 
derfully rapid  growth  of  the  Chautauqua  and  the 
Lyceum  method  of  public  instruction  and  enter- 

205 


Causes  and  Cures  of  Crime 

tainment  in  the  majority  of  the  American  states 
indicates  a  genuine  and  widespread  craving  for 
this  species  of  intellectual  diversion.  In  the  more 
advanced  states  of  North  America  almost  every 
hamlet  has  its  "lecture  course,"  suitably  inter- 
spersed with  music,  and  here  the  people  congregate 
in  large  numbers  to  hear  the  public  discourses  by 
leaders  in  various  avenues  of  thought  and  to  en- 
joy a  higher  order  of  musical  talent  than  the  home 
community  affords.  These  institutions  are  cheer- 
fully sustained  by  the  voluntary  patronage  of  the 
people,  and  children  are  always  among  the  most 
interested  listeners.  It  is  a  distinct  pleasure  to 
visit  an  American  community  while  the  "Chau- 
tauqua Assembly"  is  in  session.  Although  the 
yearly  assembly  lasts  but  one  or  two  weeks,  dur- 
ing that  period  the  community  is  alive  with  a  gen- 
uine glow  of  mental  and  moral  enthusiasm,  and 
dissipation  of  all  kinds  is  at  its  minimum.  The 
opportunities  thus  afforded  for  mental  and  moral 
growth,  as  well  as  the  inducements  for  higher 
thinking  and  cleaner  living,  are  too  obvious  to  es- 
cape the  attention  of  the  criminologist.  Here, 
undoubtedly,  is  an  avenue  through  which  the  in- 
hibitory forces  of  civilization  may  expand  with 
rapidity  and  ease,  and  where  the  degrading  influ- 
ences that  lead  to  crime  are  most  unlikely  to  per- 

206 


Social  Amelioration 

suade.  As  a  part  of  this  system  the  properly  se- 
lected motion-picture  and  other  forms  of  theat- 
rical entertainment  should  by  no  means  be  over- 
looked. Some  of  the  European  publicists  have 
urged  the  State  subsidy  for  theatres  with  free  per- 
formances, upon  the  theory  that  human  beings 
require  a  psychic  stimulus  and  that  the  theatre 
would  thus  take  the  place  of  more  dangerous 
forms  of  stimulation. 

A  system  of  police  which  would  elicit  the  re- 
spect and  win  the  confidence  of  a  community,  in- 
stead of  its  hatred  and  contempt,  would  go  far 
toward  inducing  respect  for  and  obedience  to  law. 
While  many  cities  are  properly  policed,  and  even 
where  the  worst  possible  conditions  exist  there  are 
good  men  in  the  police  departments,  the  system, 
as  a  whole,  is  too  often  brutalizing  and  disgrace- 
ful. In  many  cities  the  police  officer  is  but  an 
armed  bully.  George  Creel,  Chairman  of  the 
Board  of  Police  Commissioners  of  the  City  of 
Denver,  shocked  all  the  American  police  depart- 
ments by  disarming  the  police  force  of  Denver; 
but  the  order  at  least  served  to  call  general  atten- 
tion to  the  fact  that  a  police  officer  ought  to  be 
something  more  and  something  else  than  the  mere 
embodiment  of  brute  force.  The  indiscriminate 
method  of  making  arrests  is  also  reprehensible. 

207 


Causes  and  Cures  of  Crime 

Of  81,648  arrests  made  in  Chicago  in  191 1,  49,- 
934  were  found  to  be  innocent.  Of  9,840  women 
locked  up  that  year  in  Chicago,  1,920  were  held 
as  witnesses  merely.  The  policy  of  placing  inno- 
cent persons  under  arrest  and  then  putting  them 
in  confinement,  even  for  a  few  hours,  should 
be  discouraged.  The  name  and  address  of 
a  witness  is  all  that  an  officer  should  require 
in  order  to  provide  for  the  service  of  a  sub- 
poena. 

An  investigation  made  recently  by  the  Juvenile 
Protective  Association  of  Chicago,  and  described 
in  the  Journal  of  the  American  Institute  of  Crim- 
inal Law  and  Criminology^  for  May,  19 13,  dis- 
closes frightful  brutality  in  the  treatment  of  juve- 
nile-adult offenders  by  the  police  of  Chicago.  It 
was  learned  that  the  police  sometimes  arrest  boys 
without  taking  the  trouble  to  notify  the  parents; 
and  more  than  once  the  poor  mother  has  learned 
of  her  boy's  arrest  after  a  night  of  anxious  wait- 
ing, only  by  seeing  the  account  of  the  arrest  in 
the  newspaper.  More  than  this, — says  A.  P. 
Drucker,  who  aided  in  this  investigation — the 
boys  complained  of  terrible  beatings  received  at 
the  hands  of  the  police.  Some  were  kicked,  sand- 
bagged, bullied ;  and  one  had  a  tooth  knocked  out. 
One    had    cold    water    poured    over    him,    and 

208 


Social  Amelioration 

was  threatened  with  hot  water  if  he  would 
not  turn  state's  evidence  against  some  one  whom 
the  police  were  desirous  of  "sending  up  the 
road." 

Another  grave  form  of  abuse  described  by  Mr. 
Drucker  is  that  known  as  the  "mugging  system." 
It  is  the  custom  of  the  Chicago  police  department 
to  photograph  all  prisoners  held  to  the  grand- 
jury  by  the  municipal  judge,  before  they  are  sent 
to  the  county  jail,  and  these  photographs  are 
preserved  in  the  "rogues'  gallery."  But  only 
those  unable  to  furnish  bail  are  sent  to  the  jail 
before  their  trial.  It  follows  that  only  impecu- 
nious prisoners  are  photographed.  Yet  most  of 
the  juvenile-adults  photographed  during  the  year 
19 1 2  by  the  Chicago  Identification  Bureau  were 
innocent  boys,  inasmuch  as  55  per  cent  of  the 
cases  brought  to  the  Bureau  to  be  photographed 
and  described  were  later  discharged  as  "not 
guilty."  Such  abuses  are  not  by  any  means  con- 
fined to  Chicago.  So  general  has  become  the  rec- 
ognition of  this  wrong  that  the  matter  is  being 
brought  to  the  attention  of  State  legislatures,  and 
the  Missouri  Legislature  of  19 13  passed  a  bill 
prohibiting  this  practice  in  certain  cases.  It  would, 
indeed,  be  hard  to  conceive  of  a  more  certain 
method  of  driving  a  young   man    to    anti-social 

209 


Causes  and  Cures  of  Crime 

acts  than  this  of  arresting  him  upon  suspicion, 
locking  him  up  without  cause,  and  placing  his  por- 
trait in  a  gallery  of  criminals. 

The  right  of  the  police  to  make  arrests  "on 
suspicion,"  if  allowed  to  exist  at  all,  should  be  ex- 
ercised with  extreme  caution,  and  the  practice  of 
arresting  ex-convicts  periodically,  as  is  done  in 
some  cities,  is  utterly  without  justification.  Speak- 
ing of  these  unfortunates,  the  Chief  of  Detectives 
of  a  great  city  once  said  to  me:  "We  have  to 
round  them  up  once  in  a  ^^'hile  to  make  sure  that 
they  are  keeping  straight."  I  was  protesting  be- 
cause of  his  having  caused  the  arrest,  without 
reason  or  excuse,  of  one  of  my  paroled  prisoners. 
Such  instances  suggest  the  thought  that  the  per- 
centage of  relapse  among  discharged  prisoners  is 
not  always  due  to  a  degeneracy  of  the  prisoner. 
Sometimes  it  may  be  due  to  the  heartless  cruelty 
of  police  officers. 

To  destroy  the  anti-social  instinct  in  man  where 
it  is  found  to  exist,  it  is  necessary  to  increase  the 
inhibiting  power  of  his  social  instincts.  Teach 
him  to  practice  social  service,  and  let  the  precept 
be  enforced  by  the  example.  The  social  center 
should  be  wanting  in  nothing  which  makes  for 
better  citizenship.  The  worst  districts  of  the 
large  cities  may  be  improved  measurably,  and  the 

210 


Social  Amelioration 

moral  status  of  the  community  completely  trans- 
formed, by  providing  the  means  both  of  educa- 
tion and  harmless  recreation,  such  as  gymnasia, 
swimming  pools,  dance-halls  (conducted,  of 
course,  under  careful  supervision),  municipal 
playgrounds,  and  the  organization  of  various  so- 
cieties for  mutual  protection,  recreation  and  en- 
lightenment. 


211 


PART    III. 
THERAPEUTICS. 


CHAPTER  VIII. 
The  Theory  of  Punishment. 

Students  of  the  history  of  punishment  have 
noticed  ( i )  the  extreme  cruelty  of  punishment 
among  savages,  (2)  that  cruelty  and  ignorance 
exist  In  about  the  same  proportion  and  (3)  that 
enlightenment,  and  particularly  the  better  under- 
standing of  the  nature  of  crime  and  its  causes, 
has  tended  to  modify  the  barbaric  forms  and  to 
mitigate  the  severity  of  savage  punishments. 
Gibbon  truly  says  (ch.  14)  :  "Whenever  the  of- 
fence inspires  less  horror  than  the  punishment 
the  rigour  of  penal  law  is  obliged  to  give  way  to 
the  common  feelings  of  mankind." 

The  controlling  Idea  of  the  savage  was  ven- 
geance. Upon  this  basis  was  formulated  the  sav- 
age theory  of  punishment.     Punishments  orlgln- 

212 


The  Theory  of  Punishment 

ally  were  administered  by  the  victim  or  his  family, 
and  not  by  the  sovereign  or  chief.  The  Abyssin- 
ians  delivered  the  murderer  to  the  nearest  rela- 
tions of  the  victim,  to  be  disposed  of  as  they 
deemed  proper.  The  ancient  German  was  al- 
ways allowed  the  right  to  kill  his  adversary.  The 
same  was  true  of  the  savages  of  Australia.  By 
the  code  of  the  Visigoths  it  was  provided  that  for 
any  offence  for  which  there  was  not  already  pre- 
scribed punishment  the  poena  talionis  should  pre- 
vail. Men  were  punished  "in  kind,"  according 
to  the  savage  Hebrew  maxim  of  "an  eye  for  an 
eye  and  a  tooth  for  a  tooth."  Thus  one  who  set 
fire  to  a  house  was  himself  destroyed  by  fire.  This 
was  also  the  idea  of  the  primitive  Greeks.  The- 
seus, according  to  Plutarch,  put  a  period  to  the 
cruelties  of  Procrustes  by  making  his  body  fit  the 
size  of  his  own  beds,  as  Procrustes  had  treated 
strangers;  this  in  imitation  of  Hercules,  who  al- 
ways destroyed  public  enemies  by  precisely  the 
same  methods  they  had  employed  in  killing  their 
victims.  The  idea  of  compensatory  retaliation, 
however,  was  worked  out  in  various  schedules. 
In  some  of  the  savage  tribes  of  Africa  a  murder 
may  be  satisfied  by  any  price  agreed  upon  between 
the  murderer  and  the  friends  of  the  victim.  In 
some  instances  it  has  required  several  lives  to  bal- 

213 


Causes  and  Cures  of  Crime 

ance  one  death.  In  the  barbarous  parts  of  China, 
as  among  the  ancient  Scythians,  all  the  relatives 
of  the  culprit,  to  the  ninth  degree,  are  subjected 
to  the  same  punishment  as  the  offender  himself. 
The  husband  suffers  for  the  guilt  of  the  wife,  the 
father  for  the  children,  and  if  the  father  be  dead 
the  eldest  son  must  answer  in  his  stead  for  the 
younger  children.  In  the  Illiad,  Achilles  is  rep- 
resented as  having  killed  twelve  Trojans  in  retal- 
iation for  the  death  of  Patroclus. 

With  the  growth  of  society  life  and  property 
became  more  valuable  and  the  compensatory  plan 
of  punishment  came  into  more  extensive  use.  A 
fixed  compensation  was  established  for  nearly  all 
criminal  acts,  varying  with  the  dignity  and  impor- 
tance of  the  victim  and  the  offender.  Capital  pun- 
ishment for  murder  was  contrary  to  the  spirit  of 
the  Franks,  who,  like  mose  barbarous  nations, 
would  have  thought  the  loss  of  one  citizen  poorly 
compensated  by  the  loss  of  another.  Accord- 
ingly, the  weregild  was  paid  to  the  relatives  of 
the  slain  according  to  a  legal  rate,  which  was 
fixed  by  the  Salic  law  at  600  solidi  for  an  Antrus- 
tion  of  the  king;  300  for  a  Roman  conviva  regis; 
200  for  a  common  Frank;  100  for  a  Roman  pos- 
sessor of  lands;  45  for  a  tributary,  or  cultivator 
of  another's  property.     Murder  was  punishable 

214 


The   Theory  of  Punishment 

by  death  in  Burgundy,  but  other  personal  injuries 
were  compensated,  as  among  the  Franks,  by  a 
fine  graduated  according  to  the  rank  and  nation 
of  the  aggrieved  party.^ 

With  the  growth  of  society  the  kings  and  chiefs, 
as  the  embodiments  and  representatives  of  the 
social  power,  began  to  claim  these  fines,  and  al- 
though the  idea  of  vengeance  was  never  aban- 
doned, the  theory  that  crime  was  an  offence 
against  society  took  hold  upon  the  public  mind, 
and  in  the  course  of  time  the  officers  of  the  social 
organization  took  upon  themselves  the  authorit)' 
to  inflict  the  vengeance  that  was  formerly  held  to 
be  the  right  of  the  individual. 

Primitive  man,  apparently,  knew  no  such  thing 
as  crime,  in  the  moral  sense.  It  was  common 
among  the  Malays  to  test  their  weapons  upon  the 
first  person  who  approached.  The  young  man  of 
Borneo  was  not  permitted  to  choose  a  wife  until 
he  had  killed  at  least  one  person.  Among  the 
ancient  Germans,  as  among  the  early  Egyptians 
and  some  of  the  Greek  tribes,  theft  was  not  re- 
garded as  wrong,  and  was  sometimes  considered 
a  virtue.  With  the  dawning  sense  of  property 
the  savage  relinquished  his  right  to  steal  before 
abandoning  his  right  to  kill.     Murder  is  a  secon- 


*  Leges  Salicae,  c.  43  ;  Leges  Burgundionum  tit.  2. 
215 


Causes  and  Cures  of  Crime 

dary  offence  in  the  code  of  Manou,  but  a  gold- 
smith who  practices  fraud  is  to  be  cut  to  pieces 
with  a  razor.  So,  too,  among  the  Mongolians, 
theft  was  worse  than  murder.  When  with  the 
growth  of  feudalism  in  Europe  the  chief  became 
really  the  proprietor  of  the  tribe,  all  thefts  were 
necessarily  against  him,  and  from  that  period  date 
the  vindictive  provisions  of  the  European  codes 
against  theft.  When  practically  all  property  be- 
longed to  the  chief  or  king,  to  take  it  or  threaten 
it  without  his  consent  became  the  greatest  of  all 
crimes.  Finally  all  crimes  came  to  be  considered  as 
committed  against  the  ruler,  and  all  men,  there- 
fore, who  committed  such  crimes  were  equally  in- 
excusable and  wicked.  Any  violation  of  the  sov- 
ereign's will  was  an  act  so  horrible  that  only  the 
severest  penalties  were  thought  proper  to  vindi- 
cate the  majesty  of  the  king.  Torture  was  the 
inevitable  result.  The  limbs  of  the  criminal  were 
torn  with  red  hot  pincers,  and  melted  lead  was 
poured  into  the  wounds,  after  which  his  body  was 
torn  in  pieces  by  four  horses,  and  the  remains 
burnt  and  scattered  to  the  winds.  The  "boot" 
was  a  famous  implement  of  torture.  It  was  a 
boot  of  iron  put  on  the  leg,  and  wedges  were 
driven  in,  commonly  against  the  calf  but  some- 
times on  the  shin-bone.     Officers  of  the  English 

216 


The   Theory  of  Punishment 

government  used  it  to  punish  disloyal  or  sus- 
pected Scotchmen  in  Edinburg.^  The  excrutiat- 
ing  horrors  of  mediaeval  punishments  which  de- 
fied the  refining  influences  of  civilization  until  a 
century  ago  can  scarcely  be  conceived  by  a  normal 
mind.  Men  were  cut  with  knives  and  the  gashes 
filled  with  boiling  pitch.  Some  were  doubled 
backwards  on  a  wheel  and  slowly  crushed  to  death. 
Others  were  pierced  with  red  hot  irons,  their  eye- 
lids cut  off,  and  the  victims  thus  nailed  face  up- 
ward to  a  platform  in  the  broiling  sun.  Into  the 
ears  of  some  victims  boiling  oil  was  poured.  Oth- 
ers had  their  tongues  cut  out.  Some  were  skinned 
alive  and  then  covered  with  hot  pitch  or  salt. 
Others,  horribly  mutilated,  were  cast  into  noisome 
dungeons,  there  to  be  bitten  and  stung  to  death 
by  poisonous  reptiles,  and  their  bodies  left  to  rot. 
Burning  at  the  stake,  inconceivably  atrocious  as 
it  seems  to  us,  was  among  the  mildest  of  these  in- 
human punishments.  Of  the  341,021  victims  of 
the  Spanish  Inquisition,  31,912  were  burned  alive. 
And  the  Inquisition  was  abolished  as  late  as  1808. 
About  one  hundred  years  ago  John  Howard, 
the  English  prison  reformer,  made  a  tour  of  in- 
spection among  the  European  prisons.  He  found 
the  torture  chamber  then  in  use  in  all  the  prisons 

»  Knight's  En&,  vol.  4,  p.  294. 

217 


Causes  and  Cures  of  Crime 

on  the  continent.  This  chamber  was  usually  un- 
derground, so  that  the  cries  of  the  sufferer  might 
not  be  heard.  Clad  only  in  a  long  gown  the 
trembling  victim  was  led  to  this  apartment,  where 
were  assembled  the  magistrates,  the  executioners, 
a  surgeon  and  a  secretary;  and  there  he  was  tor- 
tured till  his  agony  had  wrung  from  him  a  con- 
fession, real  or  fictitious.  "Sometimes  it  was  the 
thumb-screw,  sometimes  the  boot,  sometimes  a 
chair  with  spikes  in  the  seat,  sometimes  it  was  a 
machine  for  dislocating  the  arms,  sometimes  it 
was  the  lash  or  shower-bath,  that  tried  the  endur- 
ance of  the  accused."  But  always  it  was  the  in- 
fernal spirit  of  malicious  deviltry  and  malignant 
savagery,  nurtured  by  absolute  power  in  the  hands 
of  ignorance  and  ill-will,  which  made  of  men  in- 
carnate fiends,  and  degraded  and  debased  human 
nature  to  a  lower  level  than  that  of  beasts  of  prey. 
Among  all  animals  man  is  most  cruel — inde- 
fensibly cruel.  Civilization  from  the  beginning 
has  been  a  constant  warfare  against  this  cruel  and 
savage  instinct,  and  where  the  inhibiting  powers 
of  civilization  are  most  highly  developed  cruelty  is 
least  in  evidence.  And  nowhere  are  the  influ- 
ences of  civilization  more  noticeable  and  more 
potent  than  in  the  development  of  humane  theo- 
ries and  forms  of    punishment.     The    struggle, 

218 


The  Theory  of  Punishment 

however,  has  been  hard,  and  progress  has  been 
slow. 

The  State's  right  to  punish  has  been  boldly 
questioned  by  many  profound  and  brilliant  minds. 
Lombroso  did  not  believe  that  any  theory  of  pun- 
ishment had  a  sound  basis,  excepting  that  of  na- 
tural necessity  and  the  right  of  self-defense.  This 
he  correctly  identified  as  the  old  theory  of  Bec- 
caria,  Romagnosi  and  Carmignani,  and  defended 
by  Garofalo,  Ferri  and  Poletti  in  Italy,  by  Hom- 
mel,  Feuerbach,  Grollmann,  and  Holtzendorff  in 
Germany,  by  Hobbes  and  Bentham  in  England, 
and  by  Ortolan  and  Tissot  in  France. 

The  causes  which  operate  to  produce  crime  are 
usually  extrinsic  and  independent  of  the  individ- 
ual will.  As  Rondeau  said:  "Anger  is  a  pass- 
ing fever,  jealousy  a  momentary  delirium,  the  ra- 
pacity of  the  thief  and  swindler  an  aberration  of 
disease,  and  the  depraved  passions  that  drive  men 
to  sins  against  nature  are  organic  imperfections. 
All  moral  evil  is  the  result  of  physical  evil.  The 
murderer  himself  is  a  sick  man  like  all  other 
criminals.  Why,  and  in  the  name  of  what  prin- 
ciple, could  they  be  punished,  unless  it  is  because 
they  disturb  the  regular  course  of  the  social  life 
and  impede  the  normal  and  legitimate  develop- 
ment of  the  species?    On  this  ground  society,  or, 

219 


Causes  and  Cures  of  Crime 

better,  the  government,  had  the  right  to  place  an 
obstacle  in  the  way  of  the  fatal  consequences  of 
their  acts,  just  as  a  land  owner  has  a  right  to 
build  a  dike  against  the  flood  which  threatens  to 
inundate  his  fields.  The  social  power  can,  then, 
without  scruple  and  without  hesitancy  deprive 
malefactors  of  their  liberty;  but  the  moment  that 
all  crime  is  recognized  as  the  natural  product  and 
logical  consequence  of  some  disease,  punishment 
must  become  only  medical  treatment.  We  shall 
cure  the  thief  and  the  vagrant  by  teaching  them 
the  joys  of  honest  work.  If  by  an  exception, 
which  is  unhappily  too  frequent,  they  show  them- 
selves insensible  to  medical  cure,  they  must  be  sep- 
arated from  their  fellow-citizens." 

The  state,  like  the  individual,  must  possess  the 
inalienable  right  to  self-defence.  Man  as  a  single 
individual  cannot  part  with  that  right  without  vio- 
lating the  law  of  life — the  right  to  live.  This 
right  being  primordial  in  its  nature,  and  indispen- 
sable to  existence,  the  man  in  his  social  capacity 
cannot  logically  be  deprived  of  it.  Man  in  a 
state  of  society  does  not  and  cannot  under  any  cir- 
cumstances yield  up  any  of  the  rights  which  are 
necessary  to  life  itself.  Acts  which  strike  at  the 
social  life  may  be  therefore  repelled  upon  the  the- 
ory of  self-defence.     Crime  is  an  anti-social  act. 

220 


The  Theory  of  Punishment 

Society,  therefore,  has  the  right  to  repress  it.  As 
Carmignani  says:  "The  reason  for  the  State's 
calling  a  criminal  to  account  is  not  to  exact  ven- 
geance for  the  crime,  but  to  bring  it  about  that 
crime  shall  not  be  committed  in  the  future."  But, 
as  Beccaria  says,  "Penalties  which  go  beyond  the 
necessity  of  preserving  the  public  weal  are  un- 
just." This  is  necessarily  true,  for  society  cannot 
acquire  any  rights  in  derogation  of  the  rights  and 
privileges  of  the  individual  excepting  alone  those 
rights  which  are  necessary  to  its  own  protection. 
In  other  words,  man  in  a  social  state  and  consid- 
ered as  a  social  being,  yields  up  no  rights,  fore- 
goes no  liberties,  excepting  those  the  forefeiture 
of  which  may  be  required  for  the  good  of  his 
fellows.  Otherwise  stated,  the  correct  principle 
is  simply  this :  Society  exists  for  the  general  good 
and  its  component  elements  must  subordinate  to 
the  general  welfare  all  activities  which  in  a  state 
of  nature  they  might  otherwise  exert.  It  will  thus 
be  seen  that  S9ciety  is  not  only  vested  with  a  right, 
but  also  with  a  duty  to  repress  and  repel  all  acts 
which  threaten  its  own  security  and  which  if  per- 
mitted to  prevail  generally  would  result  in  a  gen- 
eral reversion  to  a  state  of  nature.  Moreover, 
since  society's  right  to  punish  invasions  of  the 
social  body  flows  from  the  right  to  protect  itself, 

221 


'  Causes  and  Cures  of  Crime 

we  must  assume  that  the  social  organism  is  of 
itself  a  just  and  necessary  institution  and  one  which 
is  indispensable  to  the  happiness  and  prosperity 
of  the  individual.  If  not,  there  would  be  neither 
reason  nor  justice  in  compelling  the  individual  to 
subordinate  his  own  will  to  that  of  society.  And 
if  society  in  this  sense  exists  to  promote  the  indi- 
vidual happiness  and  prosperity,  then,  in  recog- 
nizing the  social  right  of  self-defence,  we  like- 
wise recognize  another  basis  of  justification  of 
the  right  to  punish,  i.  e.,  the  right  of  social  al- 
truism, or  the  right  to  do  unto  the  individual  that 
which,  in  the  light  of  the  social  conscience,  shall 
appear  necessary  to  the  welfare  and  happiness  of 
the  individual,  wholly  apart  from  any  consider- 
ations of  purely  social  expediency.  This  is  in  ac- 
cord with  the  ethical  concept  of  brotherly  kind- 
ness and  with  the  Christian  precept  of  the  Golden 
Rule.  It  should  be  a  source  of  satisfaction  to 
know  and  to  feel  that  the  right  to  punish  is  not 
based  wholly  upon  the  idea  of  social  egotism  in- 
volved in  the  principle  of  self-defence.  In  the 
higher  and  broader  view,  every  man  is  indeed  his 
"brother's  keeper,"  and  the  State  owes  to  the  in- 
dividual the  duty  of  repression  or  reproof  for  the 
good  of  the  offender — indeed,  we  may  safely  say 
primarily  for  the  good  of  the  offender. 

222 


The  Theory  of  Punishment 

This  principle,  however,  is  not  to  be  given  too 
broad  an  application.  It  is  not  to  be  understood 
as  implying  that  society  can  sit  as  a  court  of  con- 
science and  pass  final  judgment  upon  the  morality 
of  individual  acts;  for  organized  society  has  it- 
self been  frequently  immoral,  and  the  State  can- 
not be  the  final  judge  of  rectitude.  But,  within 
certain  limitations,  and  in  the  event  of  known  de- 
viations, the  correctional  power  of  society  may 
be  invoked  for  the  individual  good  and  we  may 
therefore  soundly  conclude  that  the  State's  right  to 
punish  rests  upon  the  twofold  premise  of  a  duty 
to  the  State  and  a  duty  to  the  individual  as  well. 

Punishment  is  not  to  be  considered  merely  as 
a  weapon  of  social  defence ;  it  should  also  be  among 
the  instrumentalities  of  social  improvement.  By 
punishment,  however,  we  do  not  necessarily  mean 
the  infliction  of  physical  pain.  The  considerations 
of  common  humanity  demand  that  the  infliction  of 
physical  pain  be  avoided  whenever  and  wherever 
possible,  and  where  apparently  unavoidable,  pain 
should  be  minimized  to  the  minutest  degree  pos- 
sible. It  is  a  dangerous  concession  to  admit  that 
the  infliction  of  physical  suffering  is  ever  permis- 
sible as  a  phase  of  legal  punishment,  for  it  was 
just  such  logic  that  gave  to  us  the  Inquisition  and 
the  torture  chambers  of  modern  Europe. 

223 


Causes  and  Cures  of  Crime 

This  brings  us  to  a  consideration  of  the  value 
of  punishment.  Whatever  value  it  may  or  may 
not  possess,  it  is  certain  that  punishment  is  not  a 
specific  for  crime.  Force  is  not  the  remedy  for 
force.  If  that  were  true,  crime  would  be  less 
where  punishments  are  most  persistent  and  severe, 
and  we  know  that  this  is  not  the  case.  "Penal  law 
in  society,"  says  Ferri,  "has  the  same  qualities  as 
education  in  the  family  and  pedagogy  in  schools. 
All  the  three  were  once  dominated  by  the  idea  of 
taming  the  passions  by  force;  the  rod  was  su- 
preme. In  course  of  time  it  was  perceived  that 
this  produced  unexpected  results,  such  as  violence 
and  hypocrisy,  and  then  men  thought  fit  to  mod- 
ify their  punishments.  But  in  our  own  days 
schoolmasters  see  the  advantage  of  relying  solely 
upon  the  free  play  of  tendencies  and  bio-psycho- 
logical laws.  Similarly  the  defensive  function  of 
society,  as  Romagnosi  said,  in  place  of  being  a 
physical  and  repressive  system,  ought  to  be  a 
moral  and  preventive  system,  based  on  the  natural 
laws  of  biology,  psychology  and  sociology." 
Tarde  and  Lombroso,  among  others,  have  taken 
quite  vigorous  exception  to  these  views  of  Ferri, 
but  none  the  less  my  own  observations  tend  to  sup- 
port the  opinion  of  Ferri.  Force  has  made  many 
hyprocrites  but  it  never  made  a  citizen.   Force  as 

224 


The  Theory  of  Punishment 

a  preventive  operates  only  upon  the  victim,  and 
the  moment  it  is  relaxed  it  becomes  inoperative. 
Where  criminals  are  reformed,  If  at  all,  the  refor- 
mation is  a  mental  and  moral  and  not  a  physical 
process,  excepting  where  dereliction  was  the  re- 
sult of  physical  causes  yielding  to  therapeutic 
treatment. 

Punishment,  to  serve  as  a  deterrent  by  force  of 
example,  must  be  certain  if  it  is  to  be  effective. 
You  may  convince  a  man  that  he  will  suffer  a  pen- 
alty he  sees  inflicted  upon  another,  provided  you 
convince  him  that  he  will  be  detected.  How  can 
you  convince  one  man  that  he  will  be  caught  when 
he  sees  so  many  others  escaping?  Every  new 
crime  is  a  proof  that  punishment  does  not  deter. 
If  conviction  always  followed  upon  the  heels  of 
crime,  the  situation  would  be  vastly  different. 
Even  the  certainty  of  detection  and  exposure 
would  deter  most  men  from  crime.  It  would  de- 
ter In  all  cases  of  deliberate  crime,  excepting  In 
the  case  of  some  defectives  and  degenerates,  and 
for  these  the  only  remedy  Is  permanent  isolation. 
The  severity  of  punishments  counts  for  absolutely 
nothing  as  a  crime  deterrent.  This  is  amply 
shown  in  the  case  of  capital  punishment. 

As  practiced  in  the  United  States  today  cap- 
ital punishment  Is  Illogical  and  Inconsistent,  both 

225 


Causes  and  Cures  of  Crime 

in  the  manner  of  Its  administration  and  in  the 
reasoning  by  which  it  is  ostensibly  supported. 
These  infirmities  are  especially  apparent  in  the 
following  among  other  important  particulars: 

We  are  accustomed  to  justify  the  death  pen- 
alty as  a  deterrent  example,  but  we  take  pains  to 
render  the  example  as  inconspicuous  as  possible 
by  dispatching  the  victim  with  the  utmost  privacy. 
Puplic  executions  are  generally  abolished,  and  are 
now  conducted  in  the  obscurity  of  a  jail  yard  with 
but  a  very  limited  number  of  spectators  present. 
In  our  day  few  indeed  are  the  persons  who  are 
permitted  to  behold  the  gallows,  even  in  its  re- 
pose. It  is  safe  to  say  that  the  majority  of  men 
do  not  know  what  it  looks  like,  excepting  from 
hearsay.  Not  one  in  ten  thousand  has  seen 
one. 

If  the  gallows  is  to  serve  as  a  warning  against 
the  commission  of  crime,  it  should  be  placed  as 
conspicuously  as  possible.  Men  and  women 
should  be  allowed  to  inspect  it,  and  to  point  it  out 
to  their  children  as  a  thing  of  terror.  It  should 
be  a  visible  manifestation  of  the  majesty  of  the 
law,  a  standing  monition  of  the  wage  of  sin. 
When  culprits  are  put  to  death  thereon,  men, 
women  and  children — especially  the  children — 
should  be  present,  in  order  that  they  may  imbibe 

226 


The  Theory  of  Punishment 

the  full  measure  of  terror  which  the  example 
should  inspire  in  the  hearts  of  the  people;  to  the 
end  that,  having  witnessed  the  example,  they  may 
be  impelled  by  its  inspiring  force  to  walk  in  the 
ways  of  righteousness  and  peace.  Yea,  more; 
the  victim  himself,  after  his  taking  off,  should  be 
made  to  subserve  the  same  benign  purposes,  as 
was  formerly  the  case,  when  the  criminal's  dis- 
severed head  was  set  upon  the  gates  of  the  prison 
and  his  limbs  distributed  among  the  principal 
cities  bf  the  kingdom.  In  such  manner  was  the 
treason  of  the  Duke  of  Monmouth  punished;  but, 
unfortunately,  the  example  even  then  was  not 
sufficiently  potent  to  prevent  the  overthrow  of 
King  James  but  a  few  years  later  in  the  Revolu- 
tion of  1688.  In  the  executions  of  that  elder  day 
it  was  also  an  incident  of  inspiring  solemnity  to 
stick  the  head  of  the  victim  on  the  end  of  a  pike- 
staff, as  a  gruesome  reminder  of  the  portentous 
truth  that  the  way  of  the  transgressor  is  hard. 

By  such  means  the  example  may  be  seen  and 
felt,  and  made  so  plain  that  "he  who  runneth  may 
read."  If  capital  punishment  be  of  any  value  as 
a  public  example  the  public  should  be  made  fully 
cognizant  of  that  example.  A  head  that  is  set  on 
a  pike-staff,  like  a  city  that  is  set  on  a  hill,  can- 
not be  hid.    It  is  futile  to  undertake  to  set  an  ex- 

227 


Causes  and  Cures  of  Crime 

ample  that  none    can    see.      An    inconspicuous 
warning  is  an  ineffective  warning. 

Why  then  was  publicity  done  away  with  ?  Why 
does  the  hangman  shun  the  light?  For  this  rea- 
son only,  and  none  other:  Men  concluded  that 
such  scenes  tended  to  engender  sentiments  more 
barbarous  than  those  which  they  were  designed 
to  suppress;  i.  e.,  that  pubhc  executions  were 
brutalizing.  Private  executions  are  said  to  be  less 
brutalizing;  the  spiritual  welfare  of  Jack  Ketch, 
to  be  sure,  being  placed  out  of  the  reckoning.  It 
is  finally  agreed,  then,  that  these  public  killings 
are  in  themselves  debasing  and  immoral,  and  in- 
stead of  setting  a  good  example  they  set  a  bad 
one.  And  the  private  execution.  Does  it  set  any 
example  at  all?  If  so,  what  kind  of  an  example? 
And,  in  so  far  as  it  affects  the  public  mind  at  all, 
is  not  the  effect  in  kind,  if  not  in  degree,  precisely 
that  which  attends  the  public  execution?  It  can 
operate  as  a  warning  only  to  the  extent  that  it  is 
known  and  its  terrors  realized.  The  logic  that 
condemns  public  executions  because  of  their  besti- 
alizing  influence  cannot  justify  the  private  execu- 
tion as  an  influence  for  good,  because  it  involves 
a  concession  that  in  so  far  as  that  influence  ex- 
tends it  is  harmful  in  character.  Therefore  the 
private  execution,  in  so  far  as  it  exerts  an  influ- 

228 


The   Theory  of  Punishment 

ence,  exerts  a  bad  one ;  otherwise,  by  the  very  logic 
of  its  advocates,  it  should  not  exist. 

Whenever  recourse  is  had  to  do  the  death  pen- 
alty, that  penalty  is  applied  because  it  is  thought 
that  life  imprisonment  is  not  sufficiently  severe. 
Is  the  death  penalty  sufficiently  severe?  How  are 
we  to  determine  this  point?  If  the  element  of 
severity  be  accounted  the  salient  principle  of  crim- 
inal punishments,  how  can  we  regard  any  pun- 
ishment as  sufficiently  severe  which  falls  short  of 
preventing  crime,  and  why  shall  we  not  increase 
the  penalties  to  the  very  limit  of  severity  until 
crime  shall  cease  or  be  reduced  to  its  minimum? 
When  we  fail  to  do  that,  we  give  evidence  of  in- 
sincerity; we  show  that  we  do  not  believe  that 
which  we  both  preach  and  practice  in  our  admin- 
istration of  the  death  penalty.  Nothing  is  more 
clear  than  that  the  gallows  and  the  electric  chair 
do  not  prevent  murder. 

Homicidal  crime  appears  to  be  increasing  in 
the  United  States.  If  severity  is  to  be  the  prin- 
cipal deterrent,  then  nothing  can  be  plainer  than 
that  we  are  not  sufficiently  severe  in  our  punish- 
ment of  murderers.  The  example  we  make  of 
them  is  not  sufficiently  horrible  to  impress  upon 
the  public  mind  the  extremely  hazardous  nature 
of  homicide  as  a  trade  or  pastime.     Indeed,  we 

229 


Causes  and  Cures  of  Crime 

often  hear  it  said  of  this  or  that  criminal,  that 
"hanging  is  too  good  for  him." 

If  death  in  any  manner  Is  Impressive  because  of 
the  severity  of  the  punishment,  why  is  not  torture 
still  more  impressive?  In  the  time  of  Henry 
VIII.,  those  who  committed  murder  by  poisoning 
were  boiled  to  death,  like  lobsters.  Now  it  Is 
plain  that  no  sane  person  wants  to  be  boiled 
alive.  Therefore,  Is  it  not  reasonable  to  believe 
that  men  would  refrain  from  murder  If  they  knew 
that  boiling  would  be  the  penalty?  Or,  they 
could  be  fricasseed — or  sent  to  the  packing  houses, 
for  soap  grease.  Ravalllac,  the  man  who  mur- 
dered Henry  IV.,  had  his  flesh  torn  off  with  hot 
pincers.  Vivisection,  too,  might  be  practiced  up- 
on them,  In  the  interest  of  science.  As  early  as 
the  4th  century  B.  C,  Herophllus  of  Alexandria 
dissected  living  criminals  who  were  supplied  by 
the  state  for  that  philanthropic  purpose.  Is  it 
reasonable  to  suppose  that  any  Southern  negro 
would  commit  rape  if  he  thought  he  would  be 
turned  over,  alive,  to  the  "student-doctors"  and 
the  dissecting  table? 

One  thing  Is  certain,  and  that  is  this:  If  severe 
punishments  prevent  crime,  then  we  are  woefully 
lacking  In  severity.  Hanging  Is  too  mild  a  pun- 
ishment.    The  advocates  of  the  scaffold  and  the 

230 


The  Theory  of  Punishment 

electric  chair  are  mere  maudlin  sentimentalists. 
If  they  are  right  in  their  theory  of  criminal  pun- 
ishments, they  err  in  not  going  far  enough;  if 
wrong,  they  have  erred  in  going  too  far.  In 
either  event,  the  argument  for  severity,  carried 
to  its  logical  conclusion,  is  an  argument  for  the 
abolition  of  the  death  penalty  as  now  adminis- 
tered. 

Under  its  own  definition  of  murder  society 
makes  itself  as  guilty  of  that  crime  every  time  a 
legal  execution  occurs  as  is  any  culprit  who  dies 
upon  the  scaffold.  After  a  crime  has  been  com- 
mitted, no  private  individual  has  the  right,  either 
morally  or  legally,  to  deliberately  kill  the  crim- 
inal, it  matters  not  how  wicked  or  depraved  that 
criminal  may  be.  Any  person  who  did  so  would 
be  adjudged  guilty  of  murder.  But  that  which 
the  individual  would  scorn  to  do  directly,  he  does 
indirectly,  and  that  which  no  private  member  of 
society  is  allowed  to  do  individually  is  done  by 
society  in  the  aggregate. 

The  common  law  definition  of  murder,  as  given 
by  Mr.  Wharton,  one  of  the  greatest  authorities 
on  criminal  law,  is  as  follows : 

"Murder  is  where  a  person  of  sound  memory 
and  discretion  unlawfully  kills  any  reasonable 
creature  in  being,  and  in  the  peace  of  the  com- 

231 


Causes  and  Cures  of  Crime 

monwealth,  with  malice  prepense  or  aforethought, 
either  express  or  implied."  As  is  well  known, 
malice  may  be  implied  from  the  deliberate  use  of 
a  deadly  weapon,  and  an  instrument  certain  to 
produce  death  is  a  deadly  weapon;  ex.  gr.,  the 
gallows  or  the  electric  chair.  The  gist  of  the 
crime  in  all  cases  is  the  deliberate  intent  to  kill. 

To  make  one  a  principal  in  a  murder  it  is  not 
necessary  that  he  should  inflict  the  mortal  wound. 
One  need  not  spring  the  death  trap  in  order  to 
share  the  responsibility  for  a  legal  execution.  In 
every  case  society  stands  by,  aiding  and  abetting 
the  killing.  Nor  is  it  necessary,  according  to  the 
accepted  authorities,  that  the  homicide,  in  order 
to  constitute  murder,  should  be  the  effect  of  the 
"direct"  violence  of  the  person  charged  with  mur- 
der. If  he  set  in  motion  the  dangerous  agency 
which  results  in  the  death  of  his  victim,  it  may  be 
murder.  If  a  person  intentionally  do  any  act  to- 
wards another,  who  is  helpless,  which  must,  nec- 
essarily, lead  to  the  death  of  that  other,  it  may 
be  murder.  It  matters  not  how  depraved  the 
victim  may  be,  to  deliberately  kill  him  or  cause  or 
aid  another  to  do  so,  is  murder.  Society  says  so, 
and  the  law  decrees  it.  Even  to  kill  an  alien 
enemy  in  time  of  war  is  murder,  unless  the  kill- 
ing occur  in  the  exercise  of  actual  warfare. 

232 


The   Theory  of  Punishment 

The  general  rule  under  the  common  law  and 
the  statutes  of  the  majority  of  the  American 
states  is  that  justifiable  or  excusable  homicide  can 
exist  only  when  the  proper  officer  executes  a  crim- 
inal in  strict  conformity  with  his  sentence,  where 
an  officer  in  the  legal  exercise  of  a  particular  duty 
kills  a  person  who  resists  or  prevents  him  from 
exercising  it,  or  where  the  homicide  is  commit- 
ted in  preventing  a  forcible  and  atrocious  crime; 
as,  for  instance,  in  self-defense,  or  where  the  de- 
ceased was  in  the  act  of  committing  robbery  or 
murder. 

The  law,  as  will  be  seen,  exempts  the  hangman ; 
for  to  be  a  murder  the  killing  must  be  done  "un- 
lawfully," and  whatever  else  may  be  said  of  the 
hangman  it  cannot  be  said  of  him  that  he  hangs 
persons  in  violation  of  the  laws  as  they  exist  and 
are  declared  and  construed  by  the  courts.  The 
hangman  is  merely  an  agent — your  agent  and 
mine.  He  acts  deliberately  and  with  intent  to 
kill.  He  coolly  plans  the  death  of  his  victim  and 
deliberately  carries  his  plans  into  execution.  But 
his  act  is  authorized  by  law.  For  this  reason, 
and  for  this  reason  only,  it  is  not  murder.  If  any 
other  human  being,  not  clothed  with  his  official 
authority,  killed  the  same  person  in  the  same 
manner,  it  would  be  murder. 

233 


Causes  and  Cures  of  Crime 

Society  has  in  the  aggregate  authorized  a  par- 
ticular officer  to  do  a  particular  act  which  any 
other  member  of  society  would  be  hanged  for  do- 
ing. The  hangman,  however,  does  not  make  the 
law.  He  can  only  obey,  or  else  resign  and  per- 
mit its  mandates  to  be  carried  out  by  another. 
But  society  does  make  the  law. 

To  the  hangman,  killing  is  but  obedience  to  the 
law.  But  w^hat  law  does  society  obey  when  it  de- 
crees the  death  penalty  and  sets  in  motion  the 
dangerous  and  deadly  agency  that  destroys  a 
human  life?  There  is  no  law  by  which  the  peo- 
ple of  any  state  are  required  to  authorize  capital 
punishment.  They  are  not  forced  to  do  so.  They 
do  not  act  under  duress,  or  any  species  of  com- 
pulsion. It  is  upon  their  part  a  voluntary  act, 
deliberately  performed,  decreeing  death  to  those 
whom  they  never  saw.  Through  the  hangman, 
therefore,  society  commits  a  murder  every  time 
the  death  penalty  is  executed.  As  to  society,  in 
such  cases  (though  not  as  to  the  hangman)  every 
element  of  murder  exists  as  defined  in  the  indict- 
ment against  the  victim.  Strike  the  word  "un- 
lawful" from  the  common  law  definition  of  mur- 
der, and  you  make  the  hangman  as  much  a  mur- 
derer as  the  man  he  hangs.  That  word  defends 
and  acquits  the  hangman.     But  to  what  law  does 

234 


The  Theory  of  Punishment 

society  turn  for  Its  defense?  Confronted  with 
these  wilful  and  deliberate  homicides  done 
through  its  decree,  how  can  it  escape  the  charge 
of  murder  by  the  very  definition  it  gives  of  that 
crime  ? 

In  vain  do  we  search  the  category  of  justifiable 
and  excusable  homicides  for  a  vindication  of  the 
State.  You  do  not  execute  the  condemned  man 
while  he  Is  resisting  an  officer,  or  while  he  is  at- 
tempting to  commit  some  forcible  or  atrocious 
crime;  you  do  not  execute  a  criminal  in  a  heat  of 
passion,  by  accident,  or  in  self-defense. 

What,  then,  has  society  to  say?  Simply  this: 
"It  is  necessary."  The  major  portion  of  society 
thinks  it  necessary  that  such,  a  one  should  die. 
Therein  lies  the  right  to  kill;  therein  lies  all  the 
defence  that  can  be  interposed  to  the  Indictment 
against  society  for  the  crime  of  murder  every 
time  It  commits  a  cold-blooded,  intentional,  delib- 
erate homicide.  The  victim  may  think  otherwise. 
A  very  considerable  minority  of  the  members  of 
society  unquestionably  do  think  otherwise.  We 
come,  then,  to  this  proposition :  The  right  of  any 
man  to  live  depends  solely  upon  the  popular  vote. 
Society  having  decreed  by  a  majority  vote  that 
certain  persons  shall  die,  they  are  executed.  Is 
that  a  defence  to  the  charge  of  murder?    It  may 

235 


Causes  and  Cures  of  Crime 

be  argued  for  society  that  the  man  who  commits 
a  capital  crime  knows  in  advance  what  the  penalty 
will  be,  and  that  having  notice  of  the  consequences 
he  acts  upon  his  own  responsibility  and  at  his  own 
peril,  when  he  incurs  the  death  penalty.  This 
suggests  the  story  of  the  Texas  cow-boy  who  stole 
a  horse.  He  was  lynched,  and  the  coroner's  jury 
brought  in  a  verdict  of  suicide.  But  the  service 
of  notice  of  an  intention  to  kill  cannot  mitigate 
the  crime;  it  simply  emphasizes  the  murderous 
intent,  and  aggravates  the  element  of  premedita- 
tion, which  is  the  chief  constitutive  element  of  the 
crime  of  murder. 

Having  by  popular  vote  determined  that  in  cer- 
tain cases  human  beings  should  be  put  to  death, 
society  has  taken  unto  itself  to  say  when  a  man 
shall  live  and  when  he  shall  die;  it  is  the  sole 
judge  of  the  expediency  and  of  the  necessity.  If 
it  have  this  right,  human  existence,  then,  must 
depend  upon  the  will  of  society.  If  it  have  the 
right  to  say  whether  or  not  a  man  shall  die  it  has, 
by  the  same  process  of  reasoning,  the  same  right 
to  say  whether  he  shall  be  born,  and  the  right 
which  builds  the  gallows  implies  the  right  to  com- 
mit abortion — or  infanticide,  as  did  the  Ephora 
under  the  constitution  of  Lycurgas. 

It  is  a  distortion  of  terms  and  a  trifling  with 
236 


The   Theory  of  Punishment 

words  to  call  this  power  a  right.  It  is  neither 
more  nor  less  than  the  exercise  of  inborn  and  in- 
herent power,  regardless  of  abstract  considera- 
tions of  right  or  wrong;  and  it  is  the  same  power 
which  the  individual  murderer  exerts  when  he 
slays  his  victim. 

However  benevolent  the  general  purpose  of 
legal  executions,  as  to  the  helpless  victim  himself 
their  purpose  is  annihilation,  predetermined  and 
premeditated,  and  the  motive  is  one  of  murderous 
malignity.  Whether  society  should  continue  to 
commit  these  deliberate  murders  may  be  an  open 
question;  but  that  society  does  commit  murder  in 
the  instances  mentioned  does  not  admit  of  doubt. 

From  the  foregoing  considerations  it  appears 
that  our  death  penalty  is  an  anomaly  in  logic  and 
in  law;  that  it  is  conceived  in  ignorance,  main- 
tained by  falsehood  and  consummated  in  murder; 
that  it  is  inconsistent  with  itself,  with  right  reason 
and  sound  morality,  and  repudiated  by  the  very 
logic  that  seeks  to  sustain  it;  that  in  its  adminis- 
tration we  do  privately  that  which  we  would  not 
do  openly,  we  do  in  part  that  which  we  would  not 
do  entirely,  we  do  collectively  that  which  we 
would  not  do  individually  and  we  convict  our- 
selves of  the  very  crime  we  condemn  in  others. 

The  author  sometime  ago  addressed  a  letter  of 

237 


Causes  and  Cures  of  Crime 

inquiry  to  the  attorney-generals  of  the  various 
states  of  the  Union  upon  the  subject  of  capital 
punishment.  Only  i6  of  the  40  officials  whose 
states  practiced  capital  punishment  expressed 
themselves  of  the  opinion  that  the  death  penalty 
does  tend  to  prevent  crime.  Eighteen  of  the  40 
declined  to  express  an  opinion.  Two  of  the  40 
were  of  opinion  that  the  death  penalty  should 
be  abolished,  and  were  positive  in  the  opinion  that 
capital  punishment  has  no  tendency  to  diminish 
capital  crime.  Four  of  the  40  responded  in  an 
indefinite  manner. 

The  attorney-generals  of  the  five  states  of  Kan- 
sas, Maine,  Michigan,  Rhode  Island,  and  Wis- 
consin, which  have  abolished  the  death  penalty, 
noted  no  increase  of  capital  crime  since  the  aboli- 
tion of  capital  punishment,  and  declared  them- 
selves satisfied  with  the  conditions  existing  in  their 
respective  states. 

Capital  punishment  was  abolished  more  than 
fifty  years  ago  in  the  states  of  Rhode  Island, 
Michigan  and  Wisconsin,  and  has  never  been  re- 
enacted  at  any  time  since.  Although  the  death 
penalty  is  nominally  authorized  by  statute  in  the 
State  of  Kansas,  that  punishment  can  be  executed 
only  after  the  signing  of  a  death-warrant  by  the 
governor.     No   Kansas  governor  has  yet  been 

238 


The  Theory  of  Punishment 

found  who  would  sign  a  warrant  for  the  execu- 
tion of  any  criminal  and  the  condemned  persons 
have  meanwhile  remained  in  prison.  In  six  of 
the  states  where  the  death  penalty  exists,  the  trial 
jury  have  the  power  to  commute  the  sentence  to 
life  imprisonment.  The  Missouri  law  giving  the 
juries  an  option  in  such  matters  was  enacted  in 
1907.  In  the  six  years  since  that  date  capital 
punishment  has  decreased  about  75  per  cent,  the 
juries  usually  preferring  to  administer  life  im- 
prisonment instead  of  the  death  penalty,  but  dur- 
ing these  six  years  there  has  been  no  increase  of 
capital  crime  in  Missouri. 

The  State  of  Iowa  abolished  the  death  penalty 
several  years  ago,  but  subsequently  re-enacted  it, 
as  the  attorney-general  wrote  me,  "because  of  the 
increase  of  murders  in  the  State."  It  does  not,  of 
course,  follow  that  these  sequent  murders  were 
a  direct  result  of  the  abolition  of  the  death  pen- 
alty, or  that,  if  such  abolition  had  anything  to  do 
with  the  increase  of  capital  crime,  it  was  the  sole 
or  controlling  influence  in  bringing  about  that  re- 
sult. To  justify  that  conclusion  it  would  first  be 
necessary  to  exclude  all  other  factors  which  tend 
to  induce  homicide,  and  none  would  be  rash 
enough  to  say  that  at  least  a  few  of  those  factors 
did  not  exist  in  Iowa  at  the  time  of  such  increase 

239 


Causes  and  Cures  of  Crime 

in  capital  crime.  In  this  respect  the  experience 
of  the  State  of  Maine  has  been  exactly  the  re- 
verse of  Iowa's  experience  with  the  death  penalty. 

The  State  of  Maine  abolished  the  death  pen- 
alty in  1876.  In  1883  this  penalty  was  re-enacted 
for  the  crime  of  murder  alone.  Two  years  later 
(in  1885)  the  governor  of  Maine  in  a  message 
to  the  State  legislature  then  in  session,  referring 
to  the  re-establishment  of  the  death  penalty  for 
the  crime  of  murder,  stated  that  there  had  been 
"an  unusual  number  of  cold-blooded  murders 
within  the  State  during  the  two  years  last  past," 
and  that  the  change  in  the  law  relating  to  the  pun- 
ishment of  murder  had  not  afforded  the  protec- 
tion anticipated.  In  1887,  two  years  later,  and 
just  four  years  from  the  date  of  its  re-enactment, 
the  death  penalty  was  again  totally  abolished  in 
the  State  of  Maine,  and  has  not  since  been  re-en- 
acted. Advices  from  that  State  are  to  the  effect 
that  the  people  of  Maine  are  so  vehemently  op- 
posed to  the  death  penalty,  and  there  is  so  little 
capital  crime  committed  in  that  State,  that  there 
is  no  likelihood  of  capital  punishment  ever  being 
re-instated  in  that  commonwealth. 

In  the  thirteen  years  prior  to  the  abolition  of 
the  death  penalty  in  Michigan  there  were  37  mur- 
ders, as  against  31  murders  in  the  thirteen  years 

240 


The  Theory  of  Punishment 

following.  The  population  having  increased  50 
per  cent,  there  was,  therefore,  an  actual  decrease 
of  40  per  cent  in  the  number  of  murders.  The 
statistics  of  Rhode  Island  and  Wisconsin  likewise 
show  a  decrease  of  murder  in  proportion  to  pop- 
ulation. Holland  and  Portugal  also  showed  a 
decrease  of  murder  after  the  abolition  of  the 
death  penalty.  The  American  States  in  which 
capital  punishment  does  not  exist  are  not  suffer- 
ing from  the  general  increase  of  homicide,  and  the 
trend  of  American  legislation  generally  is  away 
from  rather  than  toward  capital  punishment.  So, 
too,  has  been  the  general  tendency  throughout 
the  world. 

In  France  there  were  formerly  116  capital  of- 
fences. As  late  as  1666  there  were  more  persons 
executed  in  a  single  province  than  are  now  con- 
victed in  the  whole  of  France.  Before  the  year 
1780  England  punished  240  kinds  of  crime  with 
death,  among  them  many  offences  which,  like 
"witchcraft,"  are  no  longer  known  as  crimes. 

At  Cambridge,  Mass.,  August  31st,  1826, 
Judge  Joseph  Story  said,  in  an  address  on  "Char- 
acteristics of  the  Age" : 

"Harsh  and  vindictive  punishments  have  been 
discontinued  or  abolished.  The  sanguinary  codes, 
over  which  humanity  has  wept    and    philosophy 

241 


Causes  and  Cures  of  Crime 

shuddered  have  felt  the  potent  energy  of  reform, 
and  substituted  for  agonizing  terror  the  gentle 
spirit  of  mercy.  America  has  taken  the  lead  in 
this  glorious  march  of  philanthropy.  There  are 
not  in  the  code  of  the  Union,  and  probably  not  in 
that  of  any  single  state,  m.ore  than  ten  crimes  to 
which  the  judgment  of  legislation  now  affixes  the 
punishment  of  death.  England,  indeed,  counts 
in  her  bloody  catalogue  more  than  i6o  capital 
offences.  But  the  dawn  of  a  brighter  day  is  open- 
ing upon  her." 

There  now  remain,  of  all  that  "bloody  cata- 
logue," but  four  capital  crimes,  England  having 
removed  the  death  penalty  from  146  offences 
since  the  great  American  jurist  spoke.  The  same 
humane  spirit  has  been  at  work  in  the  American 
States.  At  the  time  of  Judge  Story's  address  the 
death  penalty  was  the  law  of  every  American 
State.  It  is  now  abolished  in  five.  Instead  of 
there  being  "not  more  than  ten"  offences  punish- 
able by  death  in  any  State,  there  are  no  longer 
that  many  capital  offences  in  a  single  one  of  the 
United  States  today.  Of  the  States  practicing 
capital  punishment,  nineteen  have  but  one  capital 
crime;  nine  states  have  two;  three  states  have 
three;  five  states  have  four;  two  states  have  six; 
one  state  has  seven;  and  but  a  single  state  has  as 
many  as  eight  capital  crimes.    The  State  of  Mas- 

242 


The  Theory  of  Punishment 

sachusetts  illustrates  the  tendency.  As  a  colony, 
Massachusetts  prescribed  the  death  penalty  for 
12  different  offences.  Now  she  prescribes  it  for 
murder  alone.  Virginia  leads  in  the  number  of 
capital  offences  (8)  ;  Louisiana  is  second,  with  7; 
Missouri  and  Delaware  are  third,  with  6  each. 
All  the  States  employing  the  death  penalty  pre- 
scribe it  for  the  crime  of  murder.  In  16  of  them, 
rape  is  punishable  by  death.  Treason  is  a  capital 
crime  in  but  10  states. 

The  American  citizens  know  that  there  is  quite 
as  little  treason  and  just  as  much  patriotism  and 
loyalty  in  the  States  whose  statutes  do  not  punish 
treason  by  death  as  will  be  found  in  the  10  States 
whose  laws  prescribe  capital  punishment  for  this 
crime.  Missouri,  Delaware  and  Virginia  visit 
the  death  penalty  upon  the  crime  of  kidnapping. 
But  the  homes  of  the  people  in  other  States  are 
quite  as  secure  from  this  species  of  invasion.  Dur- 
ing the  past  ten  years  Colorado  has  suffered  more 
from  homicidal  violence  than  has  the  adjoining 
State  of  Kansas.  Colorado  imposes  the  death 
penalty  for  murder  (excepting  in  cases  where  the 
evidence  is  wholly  circumstantial),  but  in  Kansas 
the  murderer  goes  to  prison  for  life — or  to  await 
the  signing  of  his  death  warrant  by  the  Governor, 
a  contingency  which  never  happens.     The  death 

243 


Causes  and  Cures  of  Crime 

penalty  did  not  check  the  murderous  feuds  in  the 
State  of  Kentucky  nor  did  it,  a  few  years  since, 
prevent  the  assassination  of  a  Governor. 

Illinois,  with  a  larger  negro  population  than 
Missouri,  suffers  no  more  from  the  crime  of  rape 
than  does  her  sister  State;  yet  Missouri  decrees 
death  to  the  rapist,  while  Illinois  does  not.  The 
attorney-general  of  a  leading  Southern  State,  in 
response  to  one  of  my  inquiries,  replied:  "In  my 
opinion  it  (the  death  penalty)  does  tend  to  dimin- 
ish capital  offences,  except  the  rape  of  white  wo- 
men my  negroes."  If  there  is  any  crime  which  the 
Southern  States  have  punished  with  the  utmost 
rigor,  it  is  this  crime  of  rape.  But  even  death, 
torture  and  the  stake  have  not  removed  it  from 
the  category  of  the  principal  crimes  with  which 
the  South  is  afflicted.  Although  the  white  people 
of  the  Southern  States  are  doubtless  in  no  mood 
to  listen  to  a  proposal  to  abolish  the  death  pen- 
alty for  rape,  yet  the  history  of  that  section  of 
the  Union  has  undoubtedly  shown  that  the  efficacy 
of  criminal  punishment  lies  not  alone  in  its  se- 
verity, nor  always  in  its  certainty,  and  that  prac- 
tically the  only  merit  of  the  death  penalty  is  that 
which  Bentham  says  naturally  suggests  itself  to 
a  primitive  state  of  society,  viz. :  it  extirpates  the 
offender. 

244 


The  Theory  of  Punishment 

Singularly  enough,  so  accurate  a  thinker  as 
Gabriel  Tarde,  who  otherwise  writes  with  great 
intelligence,  appears  to  attempt  a  justification  of 
the  death  penalty,  as  well  as  of  war,  upon  the 
basis  of  the  theory  of  Malthus  and  that  of  Dar- 
win. Neither,  however,  can  be  said  to  offer  con- 
vincing support  to  capital  punishment.  This  is 
easily  apparent.  In  his  "Essay  on  Population," 
Dr.  Malthus  attempts  to  show  that  population 
increases  more  rapidly  than  the  means  of  subsist- 
ence— a  proposition  by  no  means  demonstrable, 
because  although  we  may,  from  our  knowledge  of 
the  nature  of  man,  be  able  to  forecast  to  some  ex- 
tent the  growth  of  population,  we  can  by  no  means 
and  by  no  manner  of  possibility  estimate  the  fu- 
ture productivity  of  the  world.  New  means  and 
methods  of  production  are  being  discovered  every 
day,  so  that  in  some  instances  an  acre  of  ground  is 
made  to  yield  a  hundred  times  more  in  food  val- 
ues than  it  would  have  yielded  at  the  time  when 
Malthus  wrote  his  essay.  The  trouble  with  the 
Malthusian  school  of  materialists  is  that  they 
totally  ignore  the  factor  of  intelligence  and  the 
inventive  powers  of  man.  But,  even  if  Malthus 
were  correct,  that  would  not  cause  his  doctrine  to 
lend  support  to  capital  punishment.  On  the  con- 
trary, it  would  lend  much  greater  support  to  mur- 

245 


Causes  and  Cures  of  Crime 

der.  Once  we  reach  the  conclusion  that  the  hu- 
man race  is  multiplying  too  rapidly  and  that  soci- 
ety is  benefited  by  those  things  which  tend  to  limit 
population,  we  are  forced  to  admit  that  the  pro- 
fessional murderer  is  to  some  extent  a  public  ben- 
efactor. The  death  penalty,  in  that  event,  would 
be  a  very  bad  thing  because  it  would  discourage 
murder — if  it  does  discourage  murder  (and  M. 
Tarde  thinks  that  it  does). 

As  to  the  Darwinian  theory  of  natural  selec- 
tion and  the  survival  of  the  fittest,  that  is  always 
a  better  doctrine  for  plants  and  lower  animals 
than  it  is  for  men.  Besides,  homicide  committed 
by  the  State  in  administration  of  the  death  pen- 
alty is  not  natural  selection;  it  is  artificial  selec- 
tion. The  law  of  natural  selection  would  permit 
the  strong  to  devour  or  destroy  the  weak.  But, 
when  one  attempts  that,  you  hang  him  for  it,  and 
we  have  "resolution  thus  fobbed  as  it  is  with  the 
rusty  curb  of  old  father  antic,  the  law."  Fie 
upon  such  natural  selection.  Is  that  Darwin's 
theory?  By  no  means.  And  as  to  the  survival 
of  the  fittest — who  are  they?  The  eugenists  are 
opposing  war  because  the  fittest  are  usually  slain. 
In  Mexico,  where  assassinations  and  executions 
both  legal  and  illegal,  wars  and  murders,  are  play- 
ing a  retaliatory  game,  we  should  like  to  know  if 

246 


The   Theory  of  Punishment 

the  fittest  will  survive.     They  will  break  a  Mex- 
ican precedent  if  they  do. 

All  history  seems  to  bear  out  Beccaria's  prin- 
ciple that,  in  the  matter  of  crime  prevention,  the 
certainty  of  punishment  is  of  far  more  avail  than 
its  severity.  If  mere  severity  could  avail  any- 
thing, England  would  be  more  lawless  today  than 
she  was  three  hundred  years  ago.  But  it  is  known 
that  at  no  time  was  thieving  so  general,  and  at  no 
time  were  the  rights  of  property  less  secure,  than 
during  the  time  when  every  petit  larceny  was 
punishable  by  death,  and  thieves  were  hanged 
twenty  at  a  time.  During  the  reign  of  Henry 
VIII. ,  70,000  thieves  were  hanged  in  England. 
Commercial  paper  is  more  secure  in  England  to- 
day than  it  was  when  every  petty  forgery  was 
punishable  by  death,  notwithstanding  the  fact  that 
when  Parliament  was  considering  the  bill  for  the 
abolition  of  the  death  penalty  for  forgery  the 
bankers  of  London  protested  against  the  bill  upon 
the  ground  that  its  enactment  would  destroy  the 
value  of  commercial  paper  in  Great  Britain.  Kon- 
rad  Celtes^  wrote:  "Women  who  have  been 
brought  into  disrepute  because  of  witchcraft  or 
superstitious  practices,  or  have  been  guilty  of  in- 
fanticide or  abortion,  have  various  punishments 


•De  Orlglxifit  Situ,  Moribus,  et  Instltutionibus  Germanise. 
247 


Causes  and  Cures  of  Crime 

inflicted  upon  them;  being  either  sewed  up  in 
sacks  and  drowned,  or  even  burned  to  death,  or 
buried  alive.  Yet  these  cruel  punishments  are  not 
sufficient  to  prevent  their  continually  adding  crime 
to  crime."  Historians  are  advised  that  there  was 
not  as  much  crime  in  Rome  under  the  Valerian 
and  Porcian  laws,  when  capital  punishment  was 
abolished,  as  there  was  in  later  times,  when  every 
tyrant's  frown  meant  a  subject's  death. 

Prof.  Ferri  says  that  in  the  statistics  of  capital 
punishment  at  Ferrara,  during  nine  centuries,  he 
discovered  the  significant  fact  that  there  was  a  suc- 
cession of  notaries  executed  for  forgery,  fre- 
quently at  very  short  intervals,  in  the  same  town. 
"This,"  says  he,  "attests  the  truth  of  the  observa- 
tion made  by  Montesquieu  and  Beccaria,  as 
against  the  deterrent  power  of  the  death  penalty, 
for  men  grow  accustomed  to  the  sight;  and  this 
again  is  confirmed  by  the  fact  mentioned  by  M. 
Roberts,  a  jail  chaplain,  and  M.  Birenger,  a  mag- 
istrate, that  several  condemned  men  had  pre- 
viously been  present  at  executions,  and  by  another 
fact  mentioned  by  Despine  and  Angelucci,  that  in 
the  same  town,  and  often  in  the  same  place,  in 
which  executions  had  been  carried  out,  murders 
are  often  committed  on  the  same  day."  A  similar 
occurrence  was  detailed  by  the  late  Justice  Fox 

248 


PLATE    XI.— GROUP    OP    CONFIDENCE    MEN. 
iGourtety  Kansas  City  Police  Department.) 


k. 


1 


The   Theory  of  Punishment 

of  the  Supreme  Court  of  Missouri.  While  he 
was  "on  circuit"  a  large  concourse  assembled  to 
witness  an  execution,  in  one  of  the  counties  of  his 
circuit,  in  the  days  of  the  "public  hangings."  Va- 
rious affrays  occurred  in  the  crowd,  and  two  men 
were  stabbed,  one  of  them  fatally.  Indeed,  one  of 
the  reasons  for  making  all  executions  private  in 
the  United  States,  was  the  fact  that  the  public  ex- 
ecution was  usually  the  occasion  for  the  assemb- 
ling of  a  disorderly  crowd,  in  which  bloodshed 
was  by  no  means  a  rare  occurrence. 

It  may  be  appropriate  to  here  recall  an  utter- 
ance of  Robespierre,  which,  in  the  Hght  of  his- 
tory, seems  to  have  been  prophetic.  On  the  30th 
of  May,  1 79 1,  in  an  oration  of  great  power  and 
beauty,  he  asked  the  Constituent  Assembly  to 
abolish  capital  punishment.  In  the  course  of  his 
remarks  he  discussed  legal  executions  in  the  fol- 
lowing words:  "They  cause  to  germinate  in  the 
bosom  of  society  ferocious  prejudices  which  in 
their  turn  again  produce  others.  Man  is  no  longer 
for  man  an  object  so  sacred  as  before.  One  has 
a  lower  idea  of  his  dignity  when  public  authority 
makes  light  of  his  life.  The  idea  of  the  murder 
fills  us  with  less  horror  when  the  law  itself  sets 
the  example  and  provides  the  spectacle;  the  hor- 
ror of  the  crime  diminishes  from  the  time  the  law 

249 


Causes  and  Cures  of  Crime 

no  longer  punishes  it  except  by  another  crime." 
In  two  years  the  Reign  of  Terror  burst  with  all 
its  fury  and  vindicated  every  word  of  Robespierre. 

Plato*  says:  "Every  one  who  undergoes  pun- 
ishment, if  that  punishment  is  rightly  inflicted, 
ought  ( I )  either  to  be  made  better  thereby  and 
profit  by  it,  or  (2)  serve  as  an  example  to  the 
rest  of  mankind,  that  others,  seeing  the  suffering 
he  endures,  may  be  brought  by  fear  to  amend- 
ment of  life."  This  is  the  generally  accepted  doc- 
trine at  the  present  time.  In  the  case  of  capital 
punishment,  Plato's  first  object  of  punishment  is 
lost  in  death,  irretrievably  and  immediately.  And 
the  second  object,  the  example,  is  of  but  transient 
duration  or  momentary  effect.  The  dead  are 
soon  forgotten,  whereas  the  example  of  a  living 
convict  might  serve  for  a  generation. 

Society  can  have  but  two  rational  objects  in  the 
infliction  of  the  death  penalty.  One  is  to  protect 
itself  from  the  individual  malefactor.  This  ob- 
ject can  be  conserved  as  well,  and  to  greater  profit, 
by  life  imprisonment.  The  sole  remaining  object 
is  to  deter  others  by  the  example ;  which,  however, 
it  has  by  no  means  done,  and  this  is  proven  not 
only  by  the  prevalence  of  capital  crime  where  capi- 
tal punishment  prevails,  but  by  the  fact  that  where 

*  Gorglas,  Sec.  525. 

250 


The   Theory  of  Punishment 

capital  punishment  does  not  prevail,  the  various 
forms  of  capital  crime  are  no  more  frequent.  Con- 
siderations such  as  these,  doubtless,  have  led  to 
the  total  abolition  of  the  death  penalty  in  five  of 
the  United  States,  in  seventeen  of  the  twenty-two 
cantons  of  Switzerland,  in  Holland,  Roumania, 
Belgium,  Portugal,  Italy,  the  Argentine  Repub- 
lic, Brazil  and  Venezuela.  It  never  existed  in  the 
States  of  the  Church,  no  Pope  ever  having  per- 
mitted capital  punishment  within  his  own  territo- 
ries. 

The  right  of  the  State  to  take  the  life  of  a  cit- 
izen has  long  been  a  subject  of  discussion;  al- 
though conceding  the  soundness  of  the  doctrine  of 
the  "consent  of  the  governed"  as  the  ultimate 
basis  of  all  just  governmental  authority,  it  must 
be  admitted  that  one  cannot  be  morally  held  to  a 
contract  whereby  he  consents  that  another  may 
take  his  life.  Precisely  this  absurdity,  however, 
was  advanced  by  M.  Foullee,  who  believed  that 
by  the  imaginary  or  mythical  "social  contract" 
the  condemned  must  be  held  to  have  agreed  be- 
forehand to  the  punishment  of  death.  In  our 
civil  jurisprudence  no  man  can  give  another  the 
right  to  do  him  bodily  injury.  Such  contracts  are 
always  void  as  against  public  policy.  But  the  case 
against  capital  punishment  is  made  when    it    is 

251 


Causes  and  Cures  of  Crime 

shown  simply  to  be  unnecessary.  It  is  slowly 
dawning  upon  the  public  intelligence  that  human 
beings  do  not  refrain  from  the  commission  of  cap- 
ital crimes  merely  through  fear  of  being  hanged. 
Every  person  who  commits  a  capital  crime  knows 
that,  in  States  adhering  to  capital  punishment,  the 
death  penalty  is  affixed  to  that  particular  crime. 
From  a  personal  study  of  3,500  cases,  including 
a  number  of  condemned  murderers,  I  am  con- 
vinced that  most  crimes  are  committed  by  per- 
sons who  either  ( i )  expect  to  avoid  detection 
and  escape  all  punishment,  or  (2)  who,  upon  the 
spur  of  the  moment,  are  regardless  of  all  punish- 
ment, or  (3)  who  are  governed  by  one  or  more 
cosmic,  social  and  individual  factors,  which  the 
utmost  rigor  cannot  remove,  and  which  render 
the  prospect  or  possibility  of  punishment  wholly 
inoperative  at  the  time  of  the  commission  of  the 
crime. 

If  unnecessary  to  kill  the  offender  for  the  pro- 
tection of  society  from  the  individual  malefactor 
or  to  deter  others  from  the  commission  of  sim- 
ilar crime,  the  justification  can  be  sought  In  the 
lex  talionis  alone;  or.  In  other  words.  It  must  be 
justified  solely  and  purely  as  a  matter  of  retalia- 
tion and  vindictive  punishment  In  accordance 
with  the  savage  principle  which  we  have  hereto- 

252 


The  Theory  of  Punishment 

fore  mentioned.  Indeed,  though  excused  by  pub- 
licists upon  other  grounds,  the  proletariat  always 
justifies  capital  punishment  for  murder  exclusively 
upon  the  theory  of  retaliation,  thinking  it  entirely 
rational  and  just  that  the  blood  of  the  culprit  be 
shed  by  way  of  atonement  and  satisfaction  for 
the  blood  of  his  victim.  But  the  laws  of  modern 
civilization,  with  this  single  exception,  nowhere 
contemplate  retaliation  or  tolerate  the  idea  of  re- 
venge. Such  considerations  are  entirely  foreign 
to  every  modern  juristical  concept.  Although  the 
idea  of  retaliation  was  common  among  certain  of 
the  ancients — notably  the  Hebrew — and  among 
the  barbaric  peoples  of  Europe  during  the  Mid- 
dle Ages,  it  is  no  longer  recognized  in  the  civil 
establishments  of  the  modern  era.  If  one  burn 
the  dwelling  of  another,  we  do  not  destroy  the  of- 
fender's dwelling  in  return,  although  under  some 
of  the  ancient  statutes,  all  incendiaries  were 
burned  alive.  If  he  publish  a  criminal  libel,  the 
law  does  not  decree  the  publication  of  a  libel 
against  him.  If  he  commit  a  felonious  assault, 
the  law  does  not  authorize  a  similar  assault 
against  him  on  the  part  of  the  victim  or  the  vic- 
tim's family,  as  was  the  case  under  the  ancient 
laws  of  England.  All  these  crude  conceptions  of 
justice  have  gone  their  way,  with  the  thumb-screw 

253 


Causes  and  Cures  of  Crime 

and  the  rack,  with  trial  by  compurgation,  combat 
and  ordeal,  and  we  are  learning,  with  Montaigne, 
that  it  is  just  as  barbarous  to  kill  a  live  man  as  it 
is  to  roast  and  eat  a  dead  one. 

And  the  cruel  and  vengeful  laws  of  capital  pun- 
ishment— "those  laws" — in  the  language  of  Victor 
Hugo — "those  laws  that  dip  the  finger  in  human 
blood  to  write  the  commandment  'Thou  shalt  not 
kill,'  those  impious  laws  that  make  one  lose  one's 
faith  in  humanity  when  they  strike  the  culpable, 
and  cause  one  to  doubt  God  when  they  smite  the 
innocent" — those  laws,  too,  are  being  slowly 
blotted  from  civilization's  book  of  the  law,  and 
are  passing  away  before  the  enduring  eloquence 
of  men  like  Beccaria,  Montesquieu,  Turgot, 
Franklin,  Guizot,  Hugo  and  John  Bright,  and  the 
inexorable  logic  of  an  experience  that  is  teaching 
the  world  the  iniquity  of  revenge  and  the  folly  of 
shedding  human  blood. 

As  Franz  Joseph  Gall  said  in  1810:  "The 
measure  of  culpability  and  the  measure  of  pun- 
ishment cannot  be  determined  by  a  study  of  the  il- 
legal act,  but  only  by  a  study  of  the  individual  com- 
mitting it."  Whatever  may  be  thought  of  Gall's 
phrenology,  he  was  unquestionably  sound  in  his 
criminology.  In  the  foregoing  excerpt  he  has 
stated  the  rule  which  underlies  the  true  philosophy 

254 


The  Theory  of  Punishment 

of  punishments.  Punishments  are  for  men  and 
not  for  crimes.  The  laws  should  be  shaped  ac- 
cordingly. "The  nature  of  law  is  to  be  learned 
from  the  nature  of  man,"  says  Cicero — a  natura 
hominis  discenda  est  natura  juris.  This  should 
be  the  legislative  criterion  in  formulating  a  penal 
code.  "It  is  impossible,"  says  Ferri,  "to  separate 
the  crime  from  the  criminal,  as  it  is  impossible,  in 
drawing  up  a  penal  code,  to  suppose  an  average 
criminal  type,  which,  in  reality,  one  never  meets 
in  any  case.  Now  what  does  the  judge  do?  Be- 
fore him  is  a  pair  of  scales.  In  one  of  the  pans 
he  puts  the  crime,  in  the  other  the  penalty.  He 
hesitates,  then  diminishes  one  side  and  adds  to 
the  other,  expecting  thus  to  measure  the  social 
adaptability  of  the  criminal.  But,  having  once 
pronounced  the  sentence,  the  judge  does  not  con- 
cern himself  to  know  whether  the  person  con- 
demned falls  again  into  the  same  crime.  What 
does  he  know  of  the  application  of  the  penalty  and 
of  the  effect  that  it  has  upon  the  criminal?  Fur- 
ther, when  a  criminal  is  sentenced  for  20  years, 
but  reformed  in  10,  why  keep  him  there  for  10 
years  longer,  when  another,  to  whom  it  would  be 
useful  to  remain  in  prison  longer,  is  liberated  at 
the  end  of  5  years?  Crime  is  like  sickness.  .  .  . 
What  should  we  say  of  a  physician,  who,  stopping 


Causes  and  Cures  of  Crime 

at  the  door  of  a  hospital  ward,  should  say  to  the 
patron  brought  to  him,  'Pneumonia?  Syrup  of 
rhubarb  for  15  days.  Typhus?  Syrup  of  rhu- 
barb for  a  month;  and  then,  at  the  end  of  the 
time  named,  turn  them  out  of  doors,  whether 
cured  or  not?" 

How  much  more  logical  is  this  Italian  publi- 
cist than  the  great  German  philosopher  Kant,  who, 
in  "The  Metaphysical  Principles  of  the  Law," 
sets  up  the  requirement  that  the  penalty  should 
not  only  be  equal,  but  should  be  similar  to  the  of- 
fense; a  requirement  obviously  impossible  of  ful- 
filment, even  if  it  were  not  absurd.  But  why 
should  the  punishment  be  equal  in  kind  as  well  as 
similar  in  nature?  If  Kant's  position  is  sound  at 
all,  his  logic  should  carry  him  a  little  farther,  so 
that  the  State  might  return  blow  for  blow,  with 
interest;  which  is  the  more  logical,  too,  since  the 
object  of  punishment,  according  to  this  view,  be- 
ing not  only  retaliatory  but  also  to  vindicate  the 
"majesty"  of  the  State,  a  mere  return  of  blow 
for  blow  would  by  no  means  meet  the  require- 
ments of  the  situation.  Accordingly,  one  who 
maliciously  trod  upon  another's  corns  should  be 
given  the  bastinado  and  thus  be  repaid  in  kind, 
with  interest.  From  all  which  we  are  to  ob- 
serve that  men  are  never  more  childish  than  when 

256 


PLATE    XII.— TYPICAL    MURDEREUS. 
(Courtesv  Kantat  City  Police  Department.) 


h-fi.^^ 


The  Theory  of  Punishment 

they  attempt  to  measure  human  conduct  by  the 
severe  process  of  a  scholastic  formula.  As  well 
may  we  attempt  to  measure  it  with  line  and  rule 
and  compass.  Human  nature  is  not  to  be  so  ad- 
justed or  adjudged. 

Each  human  being  is  so  thoroughly  unique, 
both  physically  and  psychically,  that  no  two  crim- 
inal acts  can  possibly  be  governed  or  controlled 
by  precisely  the  same  motives  or  antecedents. 
Therefore  no  two  crimes  can  be  exactly  the  same, 
either  in  moral  turpitude  or  social  effect.  In  the 
mind  and  body  of  every  criminal,  in  his  social  life 
and  moral  and  industrial  opportunities,  in  his  do- 
mestic life,  individual  heritage,  in  his  physiolog- 
ical or  psychological  condition,  there  are  elements 
which,  quite  apart  from  the  legal  evidence 
which  is  supposed  to  establish  the  crime,  render  his 
act  different  from  the  act  of  any  other  man.  The 
circumstances  in  which  the  crime  was  committed, 
and  all  the  causes  which  induced  it,  must  each  be 
considered  and  given  due  weight  in  establishing 
moral  turpitude.  When  so  considered,  we  shall  find 
that  no  two  murders,  no  two  forgeries,  no  two 
robberies,  no  two  crimes  of  any  kind  are  exactly 
alike.  The  legal  evidence  may  be  the  same  in 
each  case,  but  neither  the  cause  nor  the  effect,  in 
any  two  crimes,  will  be  precisely  the  same.    They 

257 


Causes  and  Cures  of  Crime 

are  as  widely  varied  and  as  completely  different  as 
the  minds  and  motives  of  men.  This  is  not  say- 
ing that  a  criminal  is  to  be  judged  only  by  his  mo- 
tives, or  that  who  means  well  can  do  no  ill.  But 
we  do  mean  to  assert  that  in  determining  the  na- 
ture of  crime  we  are  not  to  close  our  eyes  against 
the  obvious  fact  that  the  nature  of  crime  varies 
with  the  nature  of  the  individual  committing  it, 
and  that,  therefore,  it  inevitably  follows  that  pun- 
ishments should  be  adjusted  upon  the  basis  of 
moral  culpability  and  responsiveness  to  reforma- 
tory treatment  rather  than  upon  the  admeasure- 
ment of  stated,  uniform  terms  of  imprisonment 
for  all  malefactors  committing  the  same  offense. 
"Is  it  not  clear,"  asks  Herbert  Spencer,  "that 
neither  by  absolute  morality  nor  by  Nature's 
precedents  are  we  warranted  in  visiting  on  him 
any  pains  besides  those  involved  in  remedying, 
as  far  as  may  be,  the  evil  committed,  and  prevent- 
ing other  such  evils  ?  To  us  it  seems  that  if  society 
exceeds  this,  it  trespasses  against  the  criminal." 

Moreover,  it  must  be  readily  observed  that 
there  is  no  possibility,  in  very  many  cases,  of  deter- 
mining wholly  the  proper  kind  and  degree  of  pun- 
ishment at  the  time  of  the  trial.  This  is  true,  be- 
cause ( I )  the  nature  of  the  prisoner  and  the  causes 
of  his  delictuosity  are  not  susceptible  of  immedi- 

258 


The  Theory  of  Punishment 

ate  determination,  and  (2)  because  the  effect  of 
the  punishment,  like  the  effect  of  medical  treat- 
ment, can  be  noted  in  many  cases  only  from  time 
to  time  and  by  means  of  a  more  or  less  prolonged 
series  of  observations.  It  is  manifestly  impossible 
for  any  judge  to  say,  at  the  time  he  imposes  sen- 
tence upon  a  prisoner,  just  what  the  effect  of  that 
sentence  will  be  upon  the  prisoner  or  upon  society. 
Those  results  can  be  determined  only  in  the 
future,  and,  usually,  they  may  be  better  deter- 
mined in  another  forum.  Necessarily  such  results 
will  not  be  the  same  upon  any  two  prisoners  in 
the  same  period  of  time,  nor  can  the  effect  upon 
society  in  general  be  the  same  in  each  case. 
When  the  punishment  has  been  sufficient  for  both 
the  good  of  the  offender  and  the  welfare  of  society, 
it  should  instantly  cease.  But  it  should  continue 
until  that  conclusion  is  reached  by  competent 
authority.  The  requirements  of  individual  re- 
form, as  well  as  the  requirements  of  social  protec- 
tion, must  necessarily  vary  with  each  criminal  and 
each  crime,  and  also  with  the  same  criminal  at 
different  periods  of  his  life. 

The  more  this  subject  is  studied  in  all  its  as- 
pects, the  more  seriously  are  we  inclined  to  doubt 
the  collective  and  determinate  theory  of  punish- 
ment, and  the  more  certainly  and  irresistibly  are 

259 


Causes  and  Cures  of  Crime 

we  drawn  to  the  conclusion  that  the  only  rational 
hope  of  criminal  therapeutics  lies  in  the  individ- 
ualization of  punishment,  wherein  and  whereby 
the  crude  and  exploded  theories  of  retaliation,  in- 
timidation and  expiation  give  way  to  the  more 
advanced  ideas  of  reformation  and  education. 
The  whole  subject  of  the  individualization  of 
punishment  has  been  admirably  treated  in  an  in- 
teresting volume  by  Raymond  Saleilles,  Professor 
of  Comparative  Law  in  the  University  of  Paris. 
Lombroso's  position  that  the  factors  of  crime 
are  almost  wholly  anthropological,  and  Ferri's 
position  that  they  are  almost  entirely  sociological 
are  both  valid  in  certain  particular  instances,  and 
to  a  degree  in  all  cases,  but  are  wholly  unsound 
as  a  general  and  infallible  criterion  for  establish- 
ing criminal  responsibility  and  adjusting  criminal 
punishment  in  all  cases.  The  individualization  of 
punishment  presupposes,  among  other  things,  a 
variation  in  responsibility  due  to  the  changing 
and  ever-varying  conditions  and  types  of  men. 
Without  an  understanding  and  recognition  of 
these  differences  and  variations  there  can  be  no 
justice  in  penal  judgments,  and  neither  the  good 
of  the  individual  nor  the  welfare  of  society  can 
be  properly  conserved.  However,  the  difficulties 
which  beset  the  way  of  rational  and  effective  penal 

260 


The  Theory  of  Punishment 

reform  are  numerous.  A  practical  and  complete 
system  of  punishments,  erected  upon  the  theory 
of  individualization  and  applied  universally  to 
the  problem  of  crime  in  America,  would  require 
the  amendment  of  probably  all  the  American  con- 
stitutions and  would  vest  in  the  criminal  judge 
a  wide  latitude  of  discretion  resembling  that  of 
a  court  of  equity.  But,  nevertheless,  substantial 
progress  in  this  direction  has  already  been  made, 
as  will  be  demonstrated  in  the  succeeding  chap- 
ter of  this  volume. 

Prof.  Roscoe  Pound,  of  Harvard,  in  his  intro- 
duction to  the  English  version  of  Saleilles'  work, 
finds  in  the  influence  of  Puritanism  a  reason  for 
the  hostile  attitude  of  American  institutions  to- 
ward this  reform.  "Here  he  was  in  the  major- 
ity," says  Professor  Pound,  speaking  of  the 
Puritan,  "and  made  institutions  to  his  own  lik- 
ing. It  is  no  accident,  therefore,  that  common- 
law  principles  have  attained  their  most  complete 
logical  development  in  America.  Hence  the 
contribution  of  individualist  religious  dogma  to 
the  criminal  law  was  much  greater  in  America 
than  in  France.  The  individualization  in  prac- 
tice which  was  permitted  by  the  canon-law 
conception  of  searching  and  disciplining  the 
conscience  was  wholly  alien  to  the  Puritan.     For 

261 


Causes  and  Cures  of  Crime 

above  all  things,  he  was  jealous  of  the  magis- 
trate. If  moral  questions  were  to  be  dealt  with 
as  concrete  cases  to  be  individualized  in  their  solu- 
tion, subordination  of  those  whose  cases  were 
decided  to  those  who  had  the  power  of  weighing 
the  circumstances  of  the  concrete  case  and  indi- 
vidualizing the  principle  to  meet  that  case  might 
result.  His  idea  of  'consociation  but  not  subordi- 
nation' demanded  that  a  fixed,  absolute,  univer- 
sal rule,  which  the  individual  had  contracted  to 
abide,  be  resorted  to." 

"Nowhere,"  says  Morley,  "has  Puritanism 
done  us  more  harm  than  in  thus  leading  us  to 
take  all  breadth  and  color  and  diversity  and 
fine  discrimination  out  of  our  judgments  of  men, 
reducing  them  to  thin,  narrow,  and  superficial 
pronouncements  upon  the  letter  of  their  morality 
or  the  precise  conformity  of  their  opinions  to 
accepted  standards  of  truth." 

But,  as  Professor  Pound  observes,  this  is  ex- 
actly the  method  of  the  classical  theory  in  crimi- 
nal law.  "Indeed,"  says  he,  "our  common-law 
jurists  have  taken  it  to  be  fundamental  in  legal 
theory.  Thus,  Amos  says:  'The  same  penalty 
for  a  broken  law  is  exacted  from  persons  of  an 
indefinite  number  of  shades  of  moral  guilt,  from 
persons  of  high  education  and  culture,  well  ac- 

262 


The  Theory  of  Punishment 

quainted  with  the  provisions  of  the  law  they 
despise,  and  from  the  humblest  and  most  illiterate 
persons  in  the  country.'  And,  be  it  noted,  he 
states  this  as  a  matter  of  course,  with  no  hint 
that  we  may  attain  anything  better.  Thus  politi- 
cal events  and  the  Puritanism  of  nineteenth-cen- 
tury America  tightened  the  hold  upon  us  of  a 
theory  which  on  other  grounds  for  a  time  was 
accepted  everywhere.  For  to  find  a  proper  mean 
between  a  system  of  hard  and  fast  rules  and 
one  of  completely  individualized  justice  is  one 
of  the  inherent  difficulties  of  all  administration  of 
justice  according  to  law.  And  in  the  movement 
to  and  fro  from  the  over-arbitrary  to  the  over- 
mechanical,  the  eighteenth  and  nineteenth  centu- 
ries stood  for  the  latter." 

But  the  asperities  of  the  common  law  are  being 
softened  in  America  as  well  as  in  England.  As 
to  juvenile  offenders,  it  has  been  completely  revo- 
lutionized, and  almost  within  the  past  ten  years. 
Moreover,  in  the  United  States,  the  rigidity  of 
statutory  law  has  resulted  in  a  more  liberal  ex- 
ercise of  the  pardoning  power.  The  pardoning 
power,  indeed,  has  exerted  a  potent  influence  upon 
the  reform  of  the  penal  code,  and  its  effects  have 
all  been  in  the  direction  of  retardation.  Harsh 
judgments  and  extreme  punishments  are  viewed 

263 


Causes  and  Cures  of  Crime 

with  greater  complacency  when  it  is  known  that 
relief  may  and  probably  will  be  afforded  through 
the  pardoning  power.  The  more  inflexible  the 
code,  the  greater  the  need  of  a  liberal  exercise 
of  the  pardoning  power;  and,  on  the  other  hand, 
the  more  flexible  the  code,  the  more  infrequent  is 
the  necessity  for  executive  clemency.  If  there 
were  no  such  power  in  existence  it  is  highly  prob- 
able that  the  penal  code  would  ere  now  have  been 
brought  nearly  to  an  approximation  of  the  wider 
powers  of  equity  jurisprudence. 

The  fallibility  of  courts  and  juries,  as  well  as 
the  known  infirmities  and  limitations  of  legisla- 
tive wisdom,  make  necessary  the  existence  of  the 
power  to  pardon  and  commute.  "No  human  wis- 
dom," says  Francis  Lieber,^  "can  contrive  to 
make  laws  which  will  precisely  cover  all  complex 
cases  that  may  occur,  whatever  attention  may  be 
paid  by  lawmakers  to  the  variety  of  compound 
cases  which  they  are  able  to  imagine."  The  par- 
doning power  is  therefore  analagous  to  the  pow- 
ers of  chancery,  in  the  sense  that  "equity  is  the 
correction  of  that  wherein  the  law  by  reason  of 
its  universality  is  deficient."  But  the  equity  juris- 
diction involved  in  the  power  to  pardon  is  lim- 
ited only  by  the  laws  of  universal  morality. 

*  Legal  and  Political  Hermaneutics,  p.  194. 
264 


PLATE    XIII.— SEXUAL,   PERVERTS. 
(Courtesy  Kansas  City  Police  Department.) 


The  Theory  of  Punishment 

Aristotle*  says :  "The  equitable  is  just,  but  not 
the  justice  which  is  according  to  law,  but  the  correc- 
tion of  the  legally  just.  And  this  is  the  nature  of 
the  equitable,  that  it  is  a  correction  of  law,  wher- 
ever it  is  defective  owing  to  its  universality." 
Elsewhere  he  says:*^  "And  equity  is  that  idea  of 
justice  which  contravenes  the  law. 
Equity  also  is  the  having  an  eye,  not  to  the  law, 
but  to  the  lawgiver,  and  not  to  the  conduct,  but 
to  the  principles  of  the  agent;  not  to  his  conduct 
in  one  particular,  but  to  its  whole  tenor,  not  to 
what  kind  of  a  person  he  has  been  in  this  instance, 
but  what  he  has  always  shown  himself,  or  gener- 
ally at  least."  And  so  Seneca^  said:  "Mercy  is 
free  in  coming  to  a  conclusion;  she  gives  her  de- 
cision, not  under  any  statute,  but  according  to 
equity  and  goodness."  Puffendorf  observes  that 
"it  is  necessary  that  reason  and  the  law  of  nature 
should  supply  the  defects  of  the  civil  law." 
Domat^  said  of  the  laws  derived  from  natural 
equity:  "These  are  the  laws  which  have  in  them 
a  justice  that  cannot  be  changed,  which  is  the 
same  at  all  times  and  in  all  places;  and  whether 
they  are  set  down  in  writing  or  not,  no  human 

•  Nicomachean  Ethics,  b.  V.  c.  x.  S.  4. 
T  Rhetoric,  b.  I.  c.  III.,  ss.  2-18. 
•De  dementia,  1.  II.  c.  7. 
*Le8  Lola  ClvUes,  etc. 

265 


Causes  and  Cures  of  Crime 

authority  can  abolish  them,  or  make  any  altera- 
tions in  them."  And  so  Bouvier^*'  remarks: 
"There  is  a  kind  of  equity  founded  in  natural 
justice,  in  honesty  and  right,  and  which  arises  ex 
aequo  et  bono;  this  is  called  natural  equity. 
.  This  kind  of  equity  embraces  so  wide 
a  range  that  human  tribunals  have  never  at- 
tempted to  enforce  it."  It  is  the  administration 
of  these  lofty  principles  which  we  vest  in  the 
chief  executive  of  a  commonwealth  under  the 
name  and  form  of  executive  clemency. 

Mr.  W.  W.  Smithers,  of  the  Philadelphia  bar, 
in  an  able  and  exhaustive  review  of  the  pardon- 
ing power,  in  1910,  showed  that  it  is  now  con- 
ceded under  American  institutions  that  an  appli- 
cation for  clemency  is  of  legal  right,  whether 
based  upon  a  claim  of  innocence  or  excessive  pun- 
ishment, and  that  a  moral  duty  is  imposed  upon 
the  executive  to  afford  relief  if  a  rational  inter- 
pretation of  all  the  data  marks  the  case  as  en- 
titled to  remedy  by  that  higher  justice  which 
planes  above  all  positive  law,  all  civil  procedure 
and  all  evil  equity.  "It  is  not  a  question  of  guilt 
or  innocence  alone,"  says  Mr.  Smithers;  "clem- 
ency is  not  trammeled  by  terms  which  belong  to 
the  judicial  branch  of  the  government.     Every 

"Institutes,  sec.  3724. 

266 


The   Theory  of  Punishment 

circumstance  pertaining  to  the  event  and  the  in- 
dividual is  relevant  in  faro  clementiae ,  which  is 
beyond  all  rules  of  legal  procedure,  legal  maxims 
and  formalities,  and  in  which  doctrines  like  Igno- 
rantia  legis  non  excusat  have  no  place.  By  this 
advanced  view  of  the  power  the  old,  illogical 
position  of  an  innocent  person  who  accepted  a 
pardon  is  eliminated.  Victims  of  judicial  errors 
no  longer  have  to  accept  liberty  under  false  col- 
ors. A  pardon  no  longer  necessarily  implies 
guilt,  for  it  may  flow  from  clearly  established 
innocence.  Sir  Henry  Maine,  so  long  ago  as 
1862,  while  a  member  of  the  Indian  Governor's 
Council,  referring  to  pardons  in  a  minute  on 
'Suspensions  and  Remissions  of  Sentences,'  said: 
'Originally,  as  might  be  inferred  from  the  old 
theory,  the  exercise  of  the  power  was  a  matter 
of  grace  and  favor;  more  recently  it  came  to  be 
controlled  by  considerations  of  state  policy  or 
popular  sentiment;  and  now,  at  length,  it  is  rap- 
idly becoming  identified  with  a  rehearing  of  the 
whole  case.'  " 

A  wise  system  of  government  will  not  remove 
the  pardoning  power,  but  it  ought  to  make  the 
exercise  of  that  power  unnecessary.  Many  things 
can  be  done  to  bring  about  this  ideal  condition. 
In  the  first  place,  a  court  of  criminal  jurisdiction 

267 


Causes  and  Cures  of  Crime 

should  never  completely  lose  jurisdiction  of  a 
case.  In  dealing  with  human  life  and  liberty,  a 
judge  should  never  be  wholly  without  power  to 
rectify  an  error.  In  very  many  cases  new  facts 
are  discovered  long  after  the  judgment  has  been 
entered  and  sentence  pronounced.  New  condi- 
tions arise  which  could  not  be  foreseen  at  the 
time  of  the  trial.  It  should  not  be  impossible 
for  a  judge,  upon  his  own  motion,  at  any  time 
after  judgment,  to  institute  a  subsequent  inquiry 
for  the  purpose  of  settling  any  doubts  which  may 
arise  in  his  mind  as  to  the  justice  of  a  conviction 
or  the  severity  of  a  sentence.  To  vest  such  power 
in  a  judge  would  not  be  to  necessarily  destroy 
the  power  of  executive  clemency,  but  its  effect 
would  be  to  relieve  the  executive  of  very  many 
applications  for  clemency  and  to  fix  upon  judicial 
officers  a  new  sense  of  responsibility  in  criminal 
cases  by  making  the  responsibility  a  continuing 
one. 

The  manner  in  which,  in  some  states,  responsi- 
bility for  criminal  punishments  has  been  bandied 
about,  batted  from  court  to  Governor  and  from 
Governor  to  court,  is  by  no  means  to  the  credit 
of  our  system  of  government.  I  have  known  a 
number  of  cases  in  which  the  prisoner  was  in- 
duced to  enter  a  plea  of  guilty  and  accept  a  long 

268 


The  Theory  of  Punishment 

term  of  imprisonment  upon  a  promise,  made  by 
the  judge,  from  the  bench,  that  within  a  certain 
number  of  years  the  judge  would  intercede  with 
the  chief  executive  for  a  pardon  for  the  convict. 
I  have  known  another  judge  who  persistently  re- 
fused to  offer  a  suggestion  to  the  Governor  in 
any  case,  saying:  "It  is  as  much  beyond  my 
province  as  a  judge  to  make  suggestions  to  the 
Governor  either  for  or  against  an  application  for 
executive  clemency,  as  it  would  be  for  the  Gover- 
nor to  come  into  my  court  and  offer  to  assist  me 
in  the  decision  of  a  case.  In  either  event,  the 
American  theory  of  government,  in  which  the 
executive,  judicial  and  legislative  branches  are 
intended  to  remain  wholly  distinct,  is  violated." 

Trial  judges  will  sometimes  ask  a  chief  execu- 
tive to  grant  clemency  where  they  would  not  do 
so  themselves  if  they  had  the  power,  and  there 
have  been  and  are  many  Governors  who  take 
the  position  that  no  pardon  or  commutation  of 
sentence  should  be  granted  in  any  case  excepting 
upon  the  recommendation  of  the  trial  judge  and 
the  prosecuting  attorney.  The  uses  and  abuses 
of  the  pardoning  power  afford  an  interesting 
study  in  connection  with  the  problem  of  crime 
prevention  in  the  United  States.  With  regard  to 
this,  however,  as  in  respect  of  other  phases  of 

269 


Causes  and  Cures  of  Crime 

the  crime  problem,  it  is  not  always  safe  to  at- 
tempt conclusive  inferences  merely  from  statistics 
and  percentages.  If  there  were  but  a  single  par- 
don issued  in  a  year  that  one  might  constitute  an 
abuse  of  the  pardoning  power,  and  if  clemency 
were  rightly  exercised  in  each  case  it  is  possible 
that  the  pardon  records  could  be  swelled  beyond 
their  present  dimensions  without  constituting  an 
actual  abuse  of  the  function  of  executive  clem- 
ency. 

The  American  States  have  dealt  in  various 
ways  with  the  pardoning  power,  the  tendency 
being,  wherever  legislation  is  attempted,  to  limit 
the  power  and  responsibility  of  the  Governor,  and 
in  some  instances  seeking  entirely  to  relieve  him 
of  that  function.  Thus,  in  Rhode  Island,  the 
Governor  recommends  all  pardons  to  the  State 
Senate;  they  are  then  referred  to  a  Senate  com- 
mittee, which  reports  them  back  favorably  or  un- 
favorably. Consequently  it  is  nearly  as  difficult 
to  secure  a  pardon  in  that  State  as  it  is  to  pro- 
cure the  passage  or  repeal  of  a  statute.  Another 
peculiar  provision  is  that  of  Iowa,  where  the 
Governor  must  ask  the  advice  of  the  State  Legis- 
lature before  extending  clemency  in  cases  of  mur- 
der in  the  first  degree. 

The  pardon  system,  it  may  well  be  admitted, 
270 


The  Theory  of  Punishment 

Is  not  Ideal.  But  It  Is  made  necessary  by  the  want 
of  Ideality  In  the  code.  It  may  have  been  founded, 
as  some  say,  upon  the  supposition  that  the  right 
to  punish  originally  existed  only  In  the  king.  How- 
ever that  may  be.  It  is  not  sustained  upon  that 
theory  to-day.  FUangerl^^  says :  "Every  pardon 
granted  to  a  criminal  Is  a  derogation  of  law;  for 
if  the  pardon  is  just,  the  law  is  bad,  and  If  the 
law  is  just  the  pardon  is  an  attack  upon  the  law. 
By  the  first  hypothesis,  laws  should  be  abolished, 
and  by  the  second,  pardons."  All  which.  In  my 
opinion.  Is  most  Illogical  and  untrue.  Human 
penalties  are  not  like  the  pagan  decrees  of  Fate, 
never  to  be  modified  or  recalled.  The  fact  that 
It  may  sometimes  be  found  necessary  to  modify 
a  penal  judgment  by  no  means  justifies  the  asser- 
tion that  such  modification  is  an  attack  upon  the 
law  under  which  the  judgment  was  rendered. 
But,  even  though  in  some  cases  the  pardon  may 
seek  to  tone  down  the  harshness  of  the  law  in 
Its  applicability  to  a  particular  case,  it  does  not 
for  that  reason  follow  that  the  law  should  be 
abolished  in  its  entirety.  Rousseau  said:  "Fre- 
quent pardons  announce  that  crimes  will  soon  have 
no  further  need  of  them,  and  everyone  knows 
whither  that  leads."     They  announce  nothing  of 

"  Science  of  Legislation. 

271 


Causes  and  Cures  of  Crime 

the  kind,  nor  is  the  effect  necessarily  as  Rousseau 
anticipated. 

Let  us  suppose  a  man  to  be  convicted,  in  the 
State  of  Missouri,  of  the  crime  of  murder  in  the 
second  degree,  and  that,  because  of  mitigating 
facts  developed  in  evidence  he  is  given  the  mini- 
mum sentence,  which  is  ten  years  in  the  State 
penitentiary.  Under  the  "good  conduct"  law  he 
will  be  released  in  seven  years  and  six  months  if 
his  conduct  in  prison  be  found  exemplary  in  all 
respects.  Now  suppose  that  if  after  six  and  one- 
half  years  of  service  new  and  additional  facts  in 
mitigation  be  discovered,  or  suppose  he  render 
some  unusual  and  remarkable  public  service  while 
in  prison  (such  as  helping  to  quell  a  mutiny),  or 
that  his  health  becomes  so  shattered  that  another 
year's  imprisonment  would  be  equal  to  a  death 
sentence,  or  that  circumstances  in  the  domestic 
or  other  personal  affairs  of  the  criminal  should 
develop  which  would  make  his  sentence  equal  in 
the  matter  of  punishment  to  double  the  time  in 
other  circumstances,  or  that  owing  to  peculiar 
social  conditions  the  community  would  be  vastly 
benefitted  by  his  release.  Suppose  that  in  the 
event  of  any  one  or  more  of  these  contingencies, 
the  Governor  should  decide  to  grant  a  pardon  at 
the  end  of  six  and  one-half  years.     Would  that 

272 


1 


PLATE   XIV. — TWENTIETH    CENTURY    "CIVILIZATION." 
From    a    DhotORraph    recently    taken    inside    the    wall9    of   an    American 

penitentiary. 


The   Theory  of  Punishment 

pardon,  according  to  Rousseau,  offer  new  induce- 
ment to  crime?  Would  it,  as  Filangeri  says,  be 
an  attack  upon  the  law?  On  the  contrary,  it 
would  be  in  aid  of  the  law,  and  would  not  breed 
hostility  to  it.  The  way  to  create  public  hostil- 
ity toward  "strict  statutes  and  most  biting  laws" 
is  to  enforce  them  to  the  letter.  In  "Measure  for 
Measure,"  this  point  was  admirably  grasped  by 
the  comprehensive  genius  of  Shakespeare.  Presi- 
dent U.  S.  Grant,  in  his  Inaugural  Address, 
March  4,  1869,  grasped  the  same  truth  when  he 
said:  "I  know  no  method  to  secure  the  repeal 
of  bad  or  obnoxious  laws  so  effective  as  their 
stringent  execution." 

My  own  opinion  is  that,  at  least  in  the  United 
States,  a  pardoning  power  should  be  reserved  in 
the  executive  as  a  safeguard  against  judicial  tyr- 
anny and  in  order  the  better  to  preserve  the  bal- 
ance between  the  judicial,  legislative  and  execu- 
tive branches  of  government.  But  it  ought  to  be 
sparingly  exercised  for  the  reasons  that  (i)  its 
liberal  use  tends  to  promote  either  undue  severity 
or  carelessness  in  the  courts,  inasmuch  as  it  tends 
to  lessen  their  sense  of  responsibility;  (2)  it  tends 
to  incline  the  law-making  power  to  look  with  less 
horror  upon  inequitable  and  vindictive  punish- 
ments when  the  legislators  realize  that  the  execu- 

273 


Causes  and  Cures  of  Crime 

tive  has  power  to  adjust  the  penalties  to  suit  the 
requirements  of  absolute  justice  In  each  case;  (3) 
the  executive  office  Is  usually  so  overburdened 
with  a  multiplicity  of  other  duties  that  sufficient 
time  for  the  proper  examination  of  all  cases  can- 
not usually  be  afforded;  and  (4)  finally,  the  Gov- 
ernors of  States  are  usually  chosen  for  duties 
entirely  different  from  those  Involved  In  a  proper 
exercise  of  the  pardoning  power,  and  It  Is  no 
reflection  upon  them  to  say  that  they  are  not 
usually  competent  to  pass  upon  the  numerous  and 
complex  psycho-physical  and  soclo-legal  questions 
Involved  in  a  practical  and  extensive  administra- 
tion of  this  grave  and  Important  function.  A 
capricious  and  arbitrary  use  of  the  pardoning 
power  is,  of  course,  always  possible,  but  the  best 
way  to  avoid  that  is  to  avoid  the  election  of 
capricious  and  arbitrary  Governors.  In  any  form 
of  government  we  may  occasionally  find  an  offi- 
cial like  James  II.  of  England,  of  whom  Macau- 
lay  said  "his  cruelty  was  not  more  odious  than 
his  mercy."  But  the  people  are  never  wholly 
without  remedy  against  such  sovereigns  as  James 
II.,  as  events  have  shown. 

Clemency,  as  Baccaria  said.  Is  a  jewel  which 
should  shine  in  the  code.  It  becomes  the  law- 
maker better  than  it  does  the  executive  or  the 

274 


The  Theory  of  Punishment 

judge.  Mercy  should  season  justice;  not  in  the 
interest  of  charity,  but  for  the  perfection  of  jus- 
tice. Criminal  punishments  should  be  always 
adjusted  with  a  view  to  the  cure  of  crime.  Their 
rational  purpose  is  not  to  destroy,  but  to  heal; 
for  the  criminal  himself  is  no  less  a  victim  of 
crime  than  the  man  he  wrongs  or  the  State  whose 
sovereignty  he  offends.  Perhaps,  at  some  future 
time,  when  we  know  more  of  crime  and  its  causes 
than  we  do  to-day,  we  may  be  able  to  say,  with 
Madame  de  Stael,  that  "to  understand  is  to  par- 
don," For  the  present,  the  pardoning  power 
should  be  utilized  and  applied  in  aid  of  the  indi- 
vidualization of  punishment;  although  a  better 
method  of  accomplishing  that  result  will  be  found 
in  the  indeterminate  sentence  and  parole. 


275 


CHAPTER  IX. 

Indeterminate  Sentence  and  Parole. 

There  is  a  world-wide  unanimity  of  opinion 
concerning  the  efficacy  of  the  parole  system  as  a 
curative  of  crime.  Its  wisdom  and  humanity  are 
practically  unquestioned.  Sometimes  the  parole 
is  issued  in  connection  with  the  indeterminate 
sentence,  and  sometimes,  as  in  Missouri,  pardons 
and  commutations  are  issued  upon  parole  condi- 
tions. In  either  event,  the  results  have  been,  upon 
the  whole,  satisfactory.  But,  like  all  other  reme- 
dial agencies,  its  practical  utility  depends  upon 
administrative  efficiency,  and  where  ostensible  or 
actual  temporary  failure  has  resulted  that  mis- 
fortune is  in  nearly  every  case  the  direct  effect 
of  incompetency  in  the  parole  officials. 

When,  in  the  British  Quarterly  Review  for 
July,  i860,  Herbert  Spencer  proposed  the  parole 
system,  he  added  that  "this  will  be  thought  a 
startling  proposal."    But  no  other  system  of  penal 

276 


Indeterminate  Sentence  and  Parole 

reform  every  swept  over  the  civilized  world  in 
so  short  a  period  as  fifty  years.  Spencer's  propo- 
sition was  this: 

"When  a  convict  has  fulfilled  his  task  of  mak- 
ing restitution  or  compensation,  let  it  be  possible 
for  one  or  other  of  those  who  have  known  him 
to  take  him  out  of  confinement,  on  giving  ade- 
quate bail  for  his  good  behavior.  Always  pre- 
suming that  such  an  arrangement  shall  be  pos- 
sible only  under  an  official  permit,  to  be  withheld 
if  the  prisoner's  conduct  has  been  unsatisfactory, 
and  always  premising  that  the  person  who  offers 
bail  shall  be  of  good  character  and  means,  let 
it  be  competent  for  such  a  one  to  liberate  a  pris- 
oner by  being  bound  on  his  behalf  for  a  specific 
sum,  or  by  undertaking  to  make  good  any  injury 
which  he  may  do  to  his  fellow  citizens  within  a 
specified  period."  The  great  English  philoso- 
pher, however,  was  far  too  wise  a  man  not  to 
anticipate  the  many  difficulties  that  lay  in  the 
way  of  a  practical  application  of  the  plan.  In 
enumerating  some  of  these  difliculties  he  says, 
".  .  .  above  all,  the  difficulty  of  obtaining 
officials  of  adequate  intelligence,  good  feeling  and 
self  control  are  obstacles  which  must  long  stand 
in  the  way  of  a  system  so  complex  as  that  which 
morality  dictates." 

277 


Causes  and  Cures  of  Crime 

The  Eighth  Annual  Prison  Congress  at  Wash- 
ington, D.  C,  while  thoroughly  favoring  the 
principle  of  the  parole  of  convicts  under  the  in- 
determinate sentence,  also  adopted  a  resolution 
urging  that  parole  boards  "be  so  constituted  as 
to  exclude  all  outside  influence,  and  should  con- 
sist of  a  commission  made  up  of  at  least  one 
representative  of  the  magistracy,  at  least  one  rep- 
resentative of  the  prison  administration,  and  at 
least  one  representative  of  medical  science." 
Manifestly,  the  system  can  be  of  little  avail  if 
bad  men  are  released  too  soon,  or  if  good  men 
are  too  long  confined.  The  scientific  purpose  to 
be  attained — and  a  purpose  which,  we  may  add, 
can  be  attained  only  by  scientific  methods  and 
none  other — is  the  release  of  the  right  man  at 
the  right  time.  The  board  should  be  able  to 
accurately  distinguish  between  normality  and  de- 
generacy, between  corrigibility  and  incorrigibility, 
and  should  be  able  to  detect  unerringly  the  evi- 
dences of  reformation.  Such  skill  is  not  a  matter 
of  accident.  It  does  not  come  by  chance.  It  is 
the  fruit  of  experience,  of  close  observation  and 
specialization  in  criminological  study. 

To  obtain  the  best  results,  the  parole  board 
should  be  directly  connected  with  the  control  of 
the  prison.    The  board,  or  some  of  its  members, 

278 


Indeterminate  Sentence  and  Parole 

should  be  able  to  suggest  and  put  into  effect  re- 
formatory and  educational  prison  methods  as 
well  as  to  observe  such  methods.  It  should  have 
the  power  to  control  the  education  and  prescribe 
the  discipline  of  the  prisoner,  to  release  him  the 
moment  it  appears  that  further  confinement  is  no 
longer  advantageous  either  to  the  prisoner  or  to 
society,  and  it  should  have  the  power  to  keep 
him  in  confinement  so  long  as  his  own  good  or 
the  welfare  of  the  State  shall  justify  his  deten- 
tion. The  prison  sentence  of  a  criminal  should 
in  all  cases  be  like  the  prescription  of  hospital 
treatment  for  a  patient.  The  prisoner  should 
remain  a  prisoner,  either  in  confinement  or  under 
parole,  until  his  reformation  is  completely  accom- 
plished, and  when  there  is  no  hope  of  reforma- 
tion there  should  be  no  hope  of  liberty. 

Any  man  who  has  made  a  scientific  study  of 
criminals  for  a  sufficient  length  of  time,  can  select 
at  least  ten  per  cent  of  the  population  of  any  peni- 
tentiary who  should  never  be  released  at  any 
time.  But  it  will  be  found  that  a  very  liberal 
proportion  of  such  convicts  (in  states  which  do 
not  employ  the  indeterminate  sentence)  are  un- 
dergoing sentences  of  only  from  two  to  five  years. 
Occasionally  there  is  among  them  one  who  has 
been  habitually  a  criminal,  but  the  facts  were  un- 

279 


Causes  and  Cures  of  Crime 

known  to  the  court  officers  at  the  time  of  his 
conviction.  I  found  a  number  of  such  men  serv- 
ing two  years  for  grand  larceny,  to  be  released 
in  eighteen  months  under  the  good  conduct  law. 
Such  men  should  not  be  released  at  all;  at  least 
not  until,  after  long  years  of  institutional  train- 
ing under  proper  reformatory  methods,  they  have 
exhibited  every  evidence  of  complete  reforma- 
tion. The  indeterminate  sentence  makes  possible 
the  discovery  of  these  cases  before  their  discharge. 

At  the  meeting  of  the  American  Institute  of 
Criminal  Law  and  Criminology,  held  in  Milwau- 
kee, in  19 1 2,  a  committee  headed  by  Edwin  M. 
Abbott,  presented  an  exhaustive  report  concern- 
ing the  application  of  the  principle  of  the  inde- 
terminate sentence  and  parole  to  the  penal  codes 
of  the  various  States,  reaching  the  conclusion  that 
"The  parole  system  continues  to  grow  with  mighty 
force.  The  results  have  justified  the  adoption  of 
this  system  of  mercy."  The  committee  further 
found  that  nearly  every  State  which  has  not  yet 
given  the  principle  a  trial  now  has  the  matter 
under  consideration.  Other  states,  which  have 
not  the  indeterminate  sentence  law,  are  endeav- 
oring to  approximate  its  results  by  a  proper  exer- 
cise of  the  pardoning  power. 

We  have  adopted  the  epitome  supplied  by  Mr. 
280 


Indeterminate  Sentence  and  Parole 

Abbott's  committee,  with  the  exception  of  the 
report  as  to  Missouri,  which  is  supplied  by  the 
author,  because  of  slight  historical  inaccuracy  in 
the  report  as  published,  and  because  of  subse- 
quent changes  in  the  Missouri  laws,  made  by  the 
General  Assembly  of  19 13.  The  new  Missouri 
law,  creating  a  State  Board  of  Pardons  and 
Paroles,^  of  which  I  am  the  author,  does  not 
meet  with  my  entire  approval,  but  it  is  perhaps 
the  best  that  the  Missouri  constitution  will  per- 
mit. By  use  of  the  question-index  below  the 
reader  may  gain  an  idea  as  to  the  forms  in  which 
the  principle  has  been  applied  in  the  various 
States  mentioned  and  a  model  law  may  be  evolved 
from  a  study  of  the  whole. 


QUESTIONS. 


1.  Who  may  be  committed  under  the  Indeter- 
minate Sentence. 

2.  Provisions  for  maximum  and  minimum  term. 

3.  Parole  Board. 

4.  Duties  of  the  Parole  Board. 

5.  Regulation  of  Petition  or  Argument. 

6.  Prisoners  eligible  to  parole. 


1  Laws  of  Missouri,  1913. 

281 


Causes  and  Cures  of  Crime 

7.  Points  considered  in  granting  parole. 

8.  Conditions  of  parole. 

9.  What  constitutes  violation  of  paroles. 

10.  System  of  arrest  for  violation  of  parole 
and  fees  attached  thereto. 

11.  Penalty  for  violation  of  parole. 

12.  Conditions  of  final  discharge  of  prisoner 
from  parole. 

13.  How  paroled  prisoner  is  finally  discharged. 

14.  Number  of  violations  of  parole. 

15.  Extent  of  Parole  system. 

16.  Number  of  prisoners  now  under  parole. 

17.  Note — Miscellaneous  remarks.  Special 
provisions. 

ANSWERS. 

United  States  (National)   (1910). 

1.  No  provision. 

2.  A  definite  term  over  one  year. 

3.  Superintendent  of  Prisons  of  the  depart- 
ment of  Justice,  the  Warden  and  Physician  of 
each  United  States  Penitentiary.  The  Chief 
Clerk  of  each  prison  shall  be  Clerk  of  the  Board. 

4.  Meet  three  times  a  year;  consider  applica- 
tions and  authorize  arrest  for  violation. 

282 


Indeterminate  Sentence  and  Parole 

5.  Prisoner  can  petition  but  Board  can  act 
without  petition. 

6.  All  prisoners  serving  a  definite  term  or 
terms  over  one  year  who  have  served  one-third 
of  the  total. 

7.  Service  of  one-third  of  the  total  term;  rec- 
ord showing  observation  of  the  rules  of  the  peni- 
tentiary; a  reasonable  probability  to  become  a 
law-abiding  citizen,  and  that  release  is  not  incom- 
patible with  the  welfare  of  society.  Subject  to 
approval  of  Attorney  General. 

8.  To  report  to  an  adviser  who  becomes 
sponsor;  to  reside  within  fixed  limits;  to  report 
to  Board  in  writing  each  month,  said  report  to  be 
certified  by  sponsor;  abstain  from  intoxicating 
liquors  and  not  to  visit  saloons  or  places  where 
liquors  are  sold;  not  to  associate  with  persons  of 
bad  reputation;  to  work  honorably  and  diligently 
and  to  answer  all  inquiries  sent  to  him,  and  not 
to  violate  any  other  laws. 

9.  Breach  of  any  of  above  requirements. 

10.  United  States  Marshal  or  any  Federal 
oflicer;  expenses  allowed. 

11.  Must  serve  balance  of  term  remaining  at 
time  when  paroled. 

12.  Faithfully  complying  with  parole  until  end 
of  sentence. 

283 


Causes  and  Cures  of  Crime 

13.  Automatically  at  end  of  parole. 

14.  One. 

15.  The  Board  of  each  Penitentiary  limits  the 
District,  either  State  or  County,  which  cannot  be 
extended  except  by  permission. 

16.  234.  (From  November,  19 10,  to  June 
30,   1911.) 

17.  The  above  system  has  also  been  extended 
to  the  Reform  schools  for  boys  and  girls  in 
Washington.  Where  United  States  prisoners  are 
in  state  institutions,  the  state  laws  or  United  States 
laws  apply,  subject  to  the  approval  of  the  Attor- 
ney General.  Recommendation  has  also  been 
made  to  extend  the  Parole  Law  to  life  prisoners 
after  they  have  served  a  long  period  of  years,  and 
also  to  abolish  the  Parole  boards  and  to  appoint 
one  official  for  this  work,  who  shall  report  to 
the  Attorney  General  for  approval  before  paroles 
become  operative. 


ARIZONA  (1911). 

1.  Convicts   over    18   years   of   age,   for  any 
crime,  except  treason  and  first  degree  murder. 

2.  The  maximum  or  minimum  time  now  or 
hereafter  prescribed  by  law  for  the  crime. 

284 


Indeterminate  Sentence  and  Parole 

3.  Warden  of  the  State  Prison,  Governor, 
State  Auditor,  Attorney  General  and  the  Physi- 
cian of  the  prison.  The  Warden  will  be  chair- 
man and  a  Parole  Clerk  is  appointed  by  the  Gov- 
ernor. 

4.  Meet  at  call  to  consider  the  case  of  every 
prisoner  whose  minimum  has  expired,  for  parole 
or  absolute  discharge.  Where  paroled  prisoners 
have  reverted  or  are  about  to  revert  to  criminal 
habits,  any  member  of  the  board  may  issue  a 
warrant  for  him.  The  Parole  Clerk  also  revokes 
parole. 

5.  Verbal  application  of  the  prisoner  is  the 
only  form.  The  Warden  reports  on  his  record 
before  and  since  incarceration. 

6.  Any  person  who  has  served  the  minimum, 
or  any  person  serving  a  fixed  term  who  has  a 
clean  record  for  the  time  served. 

7.  The  report  of  the  Warden  and  record  be- 
fore and  since  incarceration. 

8.  Prisoner  sends  report  to  Parole  Clerk 
monthly;  must  abstain  from  intoxicating  liquors; 
refrain  from  disreputable  associations  and  live 
and  remain  at  liberty  without  violating  the  law. 

9.  Any  violation  of  the  above  provisions. 

10.  Any    officer    of    the    prison;    all    officers 

285 


Causes  and  Cures  of  Crime 

authorized  to  serve  criminal  process.  Any  offi- 
cer other  than  the  prison  officer  received  the  same 
fees  as  for  execution  of  warrant  for  arrest  at  the 
place  where  prisoner  was  taken,  and  will  receive 
the  same  fees  for  transportation  to  the  prison 
as  are  paid  for  transportation  of  any  convict  from 
the  place  of  arrest  to  prison.  Any  officer  of  the 
prison  is  paid  expenses.  If  prisoner  has  money 
on  deposit  in  the  prison,  fees  will  be  paid  out  of  it. 

11.  Imprisonment  for  balance  of  maximum 
term  unless  again  paroled. 

12.  At  any  time  Board  decides  he  is  worthy 
of  discharge. 

13.  Automatically  at  the  expiration  of  the 
maximum  sentence  if  serving  indeterminate  sen- 
tence; or  by  expiration  of  his  sentence  if  a  fixed 
sentence.  Discharge  prior  thereto  controlled  ab- 
solutely by  the  Board. 

14.  Four  (between  August  i,  19 11,  and  June 
2,  1912). 

15.  State  system. 

16.  68,  of  whom  47  are  still  reporting. 

17.  Parole  Act  meets  favor;  Indeterminate 
Sentence  not  well  understood.  We  suggest  the  In- 
determinate Sentence  with  neither  minimum  nor 
maximum  limits. 

286 


Indeterminate  Sentence  and  Parole 

CALIFORNIA  (1893-1901). 

1.  No  indeterminate  sentence. 

2.  All  flat  sentences. 

3.  State  Board  appointed  by  the  Governor; 
including  Wardens  of  the  two  State  Prisons.  Gov- 
ernor can  revoke  paroles. 

4.  Consider  all  applications,  grant  or  refuse 
parole,  enforce  requirements  of  parole  and  revoke 
same. 

5.  All  facts  presented  in  writing.  No  attorney 
heard  or  argument  allowed. 

6.  Those  showing  clear  record  for  six  months 
and  against  whom  there  are  no  other  charges 
pending.     Life  termers  after  seven  years. 

7.  Antecedents,  conduct  as  a  prisoner,  length 
of  time  served;  general  character,  habits  and  en- 
vironment, if  released. 

8.  To  proceed  directly  to  place  of  employ- 
ment; if  change  of  employment  is  necessary,  con- 
sent of  Parole  Board  to  be  first  secured;  report 
to  the  parole  adviser  monthly,  report  to  be  certi- 
fied by  employer.  To  live  honorably,  avoid  evil 
association,  obey  the  law,  abstain  from  the  use  of 
liquor,  opium,  cocaine  or  drugs  except  upon  pre- 
scription; under  no  circumstances  to  enter  a  saloon 
where  liquors  are  sold  or  given  away. 

287 


Causes  and  Cures  of  Crime 

9.  Failure  to  obey  above  conditions. 

10.  Peace  officers;  there  is  usually  a  reward 
of  $25. 

11.  Returned  to   prison   and   forfeit   credits; 
serve  balance  of  term. 

12.  At    expiration    of    maximum    parole    pre- 
served.    May  be  discharged  sooner  by  Board. 

13.  The  Governor. 

14.  228,  until  February,  19 12. 

15.  State  system. 

16.  419  (February,  19 12). 

17.  Parole  system  considered  favorably. 


COLORADO  (1899-1907). 

1.  Any  person  sentenced  for  prison  oifense 
other  than  life. 

2.  Minimum  not  to  be  less  and  maximum  more 
than  prescribed  by  law  for  the  crime  committed. 

3.  Governor  and  four  members  appointed  by 
him. 

4.  To  parole  prisoners  under  proper  regula- 
tions. 

5.  Blank  petitions  furnished  by  Warden  after 
prisoner  has  served  one  year.  Governor  or  mem- 
ber of  the  Board  may  suggest  earlier  application. 

288 


Indeterminate  Sentence  and  Parole 

6.  At  expiration  of  minimum. 

7.  General  conduct  before  and  since  imprison- 
ment. 

8.  To  report  monthly  for  one  year,  and  there- 
after once  every  three  months  until  expiration  of 
maximum  and  to  abide  by  such  rules  and  regu- 
lations as  the  Warden  of  the  penitentiary  and 
the  Governor  of  the  state  may  from  time  to  time 
require. 

9.  Failure  to  observe  above  conditions,  or 
leave  state  without  permission. 

10.  Warrant  of  the  Board  of  Commissioners 
approved  by  the  Governor.     No  fees. 

11.  Must  serve  maximum,  time  on  parole  not 
to  be  included. 

12.  Service  of  maximum  in  prison  or  on  parole. 

13.  Automatically. 

14.  No  number  given. 

15.  State  system,  but  prisoners  may  leave  state 
after  signing  agreement  to  return  as  required  by 
Governor,  and  upon  signing  bond  with  sureties 
for  costs  of  return. 

16.  No  answer  given. 

17.  Parole  law  not  so  effective  as  it  should  be. 
Not  sufficient  parole  officers.  This  curtails  use- 
ful work  in  securing  employment  for  parole  pris- 
oners.   The  people  desire  the  system  extended. 

289 


Causes  and  Cures  of  Crime 

CONNECTICUT  (1901-02). 

1.  All  persons  (except  tramps)  committed  to 
prison  or  reformatory. 

2.  The  maximum  not  greater  than  specified 
by  law;  the  minimum  not  less  than  one  year. 

3.  Board  of  Directors,  the  Superintendent  and 
Warden  in  each  case. 

4.  To  control  parole  and  find  employment  for 
paroled  prisoners. 

5.  Prisoner  appears  in  person;  no  argument 
by  outside  persons  or  attorneys. 

6.  Those  having  served  minimum  term  of  at 
least  twelve  months. 

7.  Prison  record;  likelihood  of  return  to  or- 
derly life  outside;  employment. 

8.  Must  go  direct  to  place  of  employment; 
report  monthly  to  warden;  must  not  change  em- 
ployment without  permission;  must  not  frequent 
saloons. 

9.  Acting  contrary  to  agreement  or  leading  dis- 
orderly life. 

10.  Any  public  officer,  constable  or  sheriff; 
usual  fees  for  similar  services. 

11.  Return  to  serve  maximum  term. 

12.  By  expiration  of  maximum  or  unanimous 

290 


Indeterminate  Sentence  and  Parole 

vote   of   all   members   of   Board   at   any   stated 
meeting. 

13.  By  the  Board  of  Parole. 

14.  Twenty- four. 

15.  State  system. 

16.  122. 

17.  There  has  been  great  prejudice  against 
the  Indeterminate  Sentence.  Courts  make  the 
maximum  and  minimum  sentence  close  together, 
limiting  parole.    Parole  is  gaining  in  favor. 


IDAHO  (1907). 

1.  All  convicts  except  for  treason  or  murder 
of  first  degree. 

2.  Maximum  shall  not  exceed  the  longest  term 
fixed  by  law;  the  minimum  shall  not  exceed  one- 
half  of  the  maximum  fixed  by  statute,  and  no 
minimum  to  be  less  than  six  months,  and  where 
the  maximum  may  be  for  life  or  a  number  of 
years   the  court  shall  fix  maximum. 

3.  Prison  Board:  The  Governor,  Secretary 
of  State,  Attorney  General  and  Warden  of  the 
penitentiary. 

4.  Consider  the  record  of  trial,  investigate 
career  of  prisoner,  disposition  and  all  facts  likely 

291 


Causes  and  Cures  of  Crime 

to  show  capability  of  again  becoming  good  citi- 
zen, to  adopt  rules  to  prevent  criminals  from  re- 
turning to  career  and  help  secure  self-support 
and  accomplish  reformation ;  arrange  for  support 
upon  release. 

5.  Not  stated. 

6.  Prisoners  of  good  behavior  who  have  served 
minimum. 

7.  Discretion  of  the  Board. 

8.  To  abide  by  requirements  of  the  Board  to 
be  law-abiding  and  continue  in  employment. 

9.  Failure  to  observe  above  requirements. 

10.  Any  officer  named  in  warrant  issued  by 
Warden  and  certified  by  Clerk  of  the  prison.  No 
fees  mentioned. 

11.  Re-arrest,  and  imprisonment  for  balance 
of  term. 

12.  Faithful  observation  of  parole. 

13.  Automatically  at  expiration  of  parole  upon 
request  of  Warden. 

14.  Five,  April  12,  191 2,  (covering  a  period 
of  five  years). 

15.  State,   (but  not  definitely  set  forth). 

16.  40,  on  April  12,  191 2. 

17.  There  is  general  satisfaction  under  this 
system. 

292 


Indeterminate  Sentence  and  Parole 

INDIANA  (1897). 

1.  Any  male  person  thirty  or  over,  convicted, 
except  of  treason,  first  and  second  degree  murder. 

2.  As  provided  by  law. 

3.  Warden,    three    Directors,    Chaplain    and 
Physician. 

4.  Meet  when  necessary  and  pass  on  applica- 
tions for  parole. 

5.  Only  printed  form  allowed;  no  attorney  can 
represent  petitioner. 

6.  Prisoners  having  served  minimum. 

7.  Life  history,  demeanor,  education,  work  in 
prison,  ability  to  live  lawfully  and  keep  employed. 

8.  Must  continue  in  employment  and  report 
regularly. 

9.  Failure  to  abide  by  agreement  or  evidence 
of  return  into  criminality. 

10.  Any  peace  officer  with  warden's  or  agent's 
warrant.    Same  fee  as  bringing  man  to  prison. 

11.  Must   serve   maximum   unless   sooner   re- 
leased by  Board. 

12.  When  Board  is  satisfied  he  will  live  or- 
derly if  freed  from  parole  restrictions. 

13.  Parole  board. 

14.  Not  given. 

15.  State  syttcm. 

»93 


Causes  and  Cures  of  Crime 

1 6.  Not  given. 

17.  Warden  can  appoint  parole  agent  to  secure 
employment  and  look  after  paroled  men.  The 
system  gives  satisfaction. 


ILLINOIS  (1899). 

1.  Every  male  over  21  and  every  female  over 
18  convicted  of  felony,  except  treason,  murder, 
rape  and  kidnaping. 

2.  The  maximum  shall  not  exceed  maximum 
provided  by  law;  the  minimum  not  less  than  one 
year,  making  allowance  for  good  time,  as  pro- 
vided by  law. 

3.  The  State  Board  of  Pardons  of  three  mem- 
bers appointed  by  Governor  with  advice  of  Sen- 
ate.    Warden  is  advisory  member. 

4.  Adopt  necessary  rules,  secure  employment 
for  paroles.  Give  audience  to  and  parole  in- 
mates. 

5.  Friends  or  Attorneys  of  prisoners  can  make 
arguments. 

6.  Prisoner  must  serve  at  least  1 1  months  un- 
less old  offender,  when  2 1  months  must  be  served. 

7.  History,  parentage,  education,  conduct  in 
prison,  ability  to  live  orderly  outside. 

8.  Reputable    employment   and    a    home    free 

294 


Indeterminate  Sentence  and  Parole 

from  criminal  influence,  must  report  to  the  sheriff, 
who  must  investigate  and  forward  report  to  War- 
den.   Abstinence  from  use  of  liquor. 

9.  Prisoners  leaving  the  state,  committing 
crime,  associating  with  direputable  characters  or 
visiting  saloons. 

10.  Warden's  warrant. 

11.  Forfeiture  of  parole  and  service  for  as 
much  of  balance  of  term  as  Board  thinks  proper. 

12.  Where  prisoner  has  served  parole  12 
months;  Board  makes  order  for  discharge,  which 
when  approved  by  Governor  is  final. 

13.  Board  of  Pardons  with  approval  of  Gov- 
ernor. 

14.  About  80  a  year. 

15.  State  system. 

16.  About  700  a  year. 

17.  Some  dissatisfaction  with  present  law; 
many  feel  jury  or  trial  judge  should  fix  term  of 
imprisonment. 

IOWA  (1907). 

1.  Any  person  over  16,  convicted  of  felony 
except  treason  or  murder. 

2.  Maximum  not  more  than  provided  by  law; 
no  minimum  set  forth, 

295 


Causes  and  Cures  of  Crime 

3.  Three  citizens  appointed  by  Governor  with 
advice  of  Senate. 

4.  Prepare  rules,  keep  in  communication  with 
and  assist  men  on  parole. 

5.  No  petition  or  argument  allowed  except 
upon  request  of  Board. 

6.  Those  having  served  11  months  except 
where  maximum  is  2  years  or  less,  then  6  months. 

7.  Record  and  character  before  and  after  com- 
mitment; nature  of  the  crime,  future  environ- 
ment, personal  impressions  of  applicant. 

8.  Must  remain  in  state,  have  permanent  em- 
ployment, report  monthly,  live  honestly,  avoid 
evil  associations,  not  change  residence  without 
permission. 

9.  Breach  of  any  of  requirements. 

10.  Any  officer  with  order  of  Board,  certified 
by  Secretary.     Fees  same  as  Sheriff. 

11.  Must  serve  maximum,  time  upon  parole 
not  counted. 

12.  Twelve  months'  service  of  parole  accept- 
ably and  if  likely  to  be  reliable  and  trustworthy 
in  the  future. 

13.  Governor  upon  recommendation  of  Parole 
Board. 

14.  Not  given. 

296 


Indeterminate  Sentence  and  Parole 

15.  State  system. 

16.  Not  given. 

17.  System  appears  to  be  working  satisfacto- 
rily, particularly  as  complete  trial  record  is  fur- 
nished Board  by  County  Attorney  and  Court 
Clerk. 

KANSAS   (1903). 

1.  All  convicts,  except  for  murder  or  treason. 

2.  Minimum  and  maximum  prescribed  by  law, 
subject  to  control  of  trial  judge. 

3.  Three  members  of  Parole  Board.  This 
Board  has  charge  of  penitentiary  and  state  re- 
formatory. At  penitentiary,  Warden  is  Secre- 
tary and  member  of  Board. 

4.  Hear  and  recommend  for  parole  to  Gover- 
nor from  the  penitentiary.  The  Governor's  ap- 
proval not  necessary  from  reformatory. 

5.  No  petition  or  argument  allowed. 

6.  All  prisoners  having  served  minimum  with 
six  months  of  clear  prison  record  except  those 
committed  for  murder  in  the  first  or  second  de 
gree,  or  serving  third  term. 

7.  Prisoner's  desire  and  ability  to  become  law- 
abiding  citizen.  Record  for  industry  and  con- 
duct while  in  prison. 

297 


Causes  and  Cures  of  Crime 

8.  Secure  employment;  report  immediately; 
not  change  employment  without  permission;  spend 
evenings  at  home;  attend  church  at  least  once 
each  Sunday;  abstain  from  all  intoxicating  liquor, 
avoid  evil  associates  and  improper  places  of 
amusement;  obey  and  respect  the  laws.  That  he 
live  with  wife  or  mother,  and  support  them. 

9.  Any  violation  of  above  rules. 

10.  Warden's  warrant  served  by  any  officer. 
No  fees. 

1 1.  Must  serve  balance  of  unexpired  term. 

12.  Can  be  discharged  at  any  time  after  faith- 
ful parole  of  six  months. 

13.  The  Governor. 

14.  About  60  during  191 1. 

15.  State  system  (although  not  specifically  set 
forth). 

16.  About  400. 

17.  General  satisfaction,  with  a  request  for 
stronger  equipment  of  Parole  Board.  As  much 
thought,  investigation  and  care  should  be  used  in 
determining  a  man's  fitness  to  return  to  society 
as  is  applied  in  ascertaining  his  unfitness  for 
society. 


298 


Indeterminate  Sentence  and  Parole 

KENTUCKY  (1910). 

1.  Convicts  over  30,  subject  to  prison  term,  or 
an  habitual  criminal  or  incorrigible  at  reforma- 
tory. 

2.  Provided  by  law. 

3.  Board  of  four  penitentiary  commissioners. 

4.  Parole  in  their  discretion.  Direct  arrest 
of  violators. 

5.  Not  set  forth. 

6.  Those  having  served  minimum  and  life  pris- 
oners having  served  five  years.  All  must  have 
good  behavior  record  for  9  months. 

7.  Not  stated. 

8.  Employment  for  six  months  or  sufficient  sus- 
taining income ;  report  monthly,  live  orderly,  obey 
laws  and  abstain  from  drink. 

9.  Breach  of  requirements  or  any  other  rea- 
son sufficient  to  the  Board. 

10.  Any  officer  with  warrant  signed  by  chair- 
man of  Board.     Expense  paid. 

11.  Re-imprisonment  until  further  action  of 
Board. 

12.  Exemplary  conduct  on  parole  for  12 
months. 

13.  Board  of  penitentiary  commissioners. 

14.  Not  given. 

299 


Causes  and  Cures  of  Crime 

15.  General;  (need  not  remain  in  the  state). 

16.  Not  given. 

17.  Generally  satisfactory;  a  special  agent  of 
the  state  looks  after  employment  and  conduct  of 
paroles,  and  assists  them  in  every  way  possible. 
Visits  them  frequently. 


MASSACHUSETTS  (1884-86). 

1.  Any  convict  sentenced  to  State  Prison  ex- 
cept for  life  or  as  habitual  criminal. 

2.  Minimum  not  less  than  2^  years.  Maxi- 
mum not  more  than  prescribed  by  law.  Addi- 
tional sentence  begins  at  expiration  of  first  mini- 
mum. 

3.  Five  Prison  Commissioners  appointed  by 
Governor  with  consent  of  Council. 

4.  Consider  applications  for  parole  and  gen- 
eral supervision  over  all  parole  matters. 

5.  No  petition  necessary, 

6.  Must  parole  at  expiration  of  minimum  if 
record  has  been  perfect;  otherwise,  date  is  set  by 
Commissioners. 

7.  Prison  record. 

8.  Shall  not  lead  idle  or  dissolute  life,  must  ab- 
stain from  bad  company  and  intoxicating  drinks. 

300 


Indeterminate  Sentence  and  Parole 

Report  when  required.     Must  not  become  a  de- 
pendent upon  charity. 

9.  Violation  of  any  of  conditions. 

10.  Any  officer  on  Warrant  of  Governor, 
Prison  Commissioners  or  duly  authorized  official. 

11.  Detention  according  to  terms  of  original 
sentence.  Period  of  liberty  not  credited.  May 
again  be  paroled. 

12.  At  expiration  of  maximum. 

13.  Automatically,  at  expiration  of  maximum. 

14.  617  in  1911. 

15.  State  System  (although  not  definitely  set 
forth). 

16.  853  on  July  29,  1912. 

17.  The  Governor  and  Council  are  given  power 
to  issue  parole  to  habitual  criminals.  This  covers 
the  remainder  of  term  of  sentence  and  may  be 
upon  such  terms  and  conditions  as  they  prescribe. 
The  entire  parole  system  is  commended. 


MICHIGAN  (1905). 

1.  All  convicts  except  life. 

2.  Minimum  not  less  than  six  months.  Maxi- 
mum not  more  than  provided  by  law.  Judge  can 
recommend  proper  maximum. 

301 


Causes  and  Cures  of  Crime 

3.  Governor  and  Advisory  Board  of  four.  In 
some  instances  Governor  alone;  Warden  makes 
recommendation. 

4.  Adopt  rules  and  supervise  entire  parole 
system. 

5.  Personal  application  only  once  a  year. 

6.  All  convicts  except  third  termers  .at  expira- 
tion of  minimum,  whose  periods  of  parole  must 
not  exceed  four  years. 

7.  Record  of  the  case,  life  in  prison  and  char- 
acter. 

8.  Must  leave  the  county,  have  honorable  em- 
ployment with  responsible  person,  and  report 
monthly.  Must  not  visit  saloons  or  keep  bad 
company. 

9.  Any  reason  satisfactory  to  Warden  or 
Superintendent. 

10.  Any  officer  named  in  Warden's  Warrant; 
no  fees  set  forth. 

11.  Must  serve  maximum.  Time  at  liberty 
not  counted. 

12.  Faithful  observance  of  requirements  until 
expiration  of  parole.  This  period  is  fixed  at  the 
time  of  parole. 

13.  Governor,  Advisory  Board,  Warden. 

14.  Not  given. 

302 


Indeterminate  Sentence  and  Parole 

15.  State  system,  but  paroled  prisoner  must 
not  return  to  county  wherein  he  was  confined. 

16.  Not  given. 

17.  Governor  can  act  independently,  but  usu- 
ally relies  upon  his  advisory  board  after  recom- 
mendation from  Warden.  The  system  gives  sat- 
isfaction. 


MINNESOTA  (1911). 

1.  All  convicts  except  for  treason  or  murder. 

2.  Maximum  shall  not  exceed  maximum  pro- 
vided by  law.     Minimum  not  stated. 

3.  State  Board  of  Parole;  three  members, 
President  of  the  Board  of  Control,  Warden  of 
Prison  and  a  citizen  appointed  by  Governor. 

4.  To  regulate  and  control  entire  Parole  sys- 
tem. 

5.  Not  necessary,  but  not  prohibited. 

6.  All  prisoners,  in  Board's  discretion,  except 
life  prisoners,  and  life  prisoners  after  service  of 
thirty-five  years  less  commutation  for  good  be- 
havior. 

7.  Previous  history,  physical  or  mental  condi- 
tion, character,  prison  record. 

8.  Steady  employment;  refrain  from  crime, 
report  regularly,  avoid  evil  associations  and  the 

303 


Causes  and  Cures  of  Crrtne 

use   of   intoxicating   liquors.      Must   not   marry 
while  on  parole  without  consent  of  Board. 

9.  Violation  of  any  of  the  conditions  of  parole. 

10.  Agents  designated  by  Board.  Under  sal- 
ary and  receive  traveling  expenses. 

11.  Re-imprisonment  and  loss  of  grade. 

12.  Faithful  observance  of  parole. 

13.  Governor,  upon  recommendation  of  Board. 

14.  About  one  out  of  five  or  six. 

15.  State  system. 

16.  62  on  April  17,  19 12,  from  the  State 
Prison. 

17.  Generally  favorable.  The  Indeterminate 
sentence  is  new,  but  the  Parole  Act  has  proven 
very  satisfactory. 


MISSOURI  (1913). 

1.  No  such  law. 

2.  No  such  law. 

3.  Board  of  Pardons  and  Paroles,  composed 
of  three  persons  appointed  by  the  Governor. 

4.  To  investigate  all  applications  for  executive 
clemency,  meet  once  in  each  month  and  make 
recommendations  to  the  Governor. 

5.  Petition  must  be  supported  by  statements 
from  trial  judge  and  prosecuting  attorney,  and 

304 


Indeterminate  Sentence  and  Parole 

recommendation  of  jury  if  trial  was  had;  affidavit 
of  publisher  that  three  weeks'  notice  of  applica- 
tion was  given  in  one  newspaper  in  county  where 
crime  was  committed. 

6.  All  persons  under  conviction  for  any  offense. 

7.  Previous  history,  physical  and  mental  con- 
dition, character,  prison  conduct,  mitigating  facts 
and  circumstances. 

8.  Steady  employment,  refrain  from  crime,  re- 
port regularly,  abstain  from  bad  associates,  in- 
toxicants, etc. 

9.  Breach  of  the  conditions. 

10.  Warden's  warrant,  by  the  order  of  the 
Governor. 

11.  Serve  remainder  of  sentence. 

12.  At  expiration  of  term  by  operation  of  law 
unless  sooner  pardoned  by  the  Governor. 

13.  By  operation  of  law  upon  expiration  of 
sentence. 

14.  Not  stated. 

15.  Applied  to  all  penitentiary  convicts. 

16.  Not  stated. 

17.  The  Governor  is  not  bound  by  the  recom- 
mendations of  the  Board  of  Pardons  and  Paroles, 
and  his  power  under  the  Missouri  constitution 
cannot  be  limited.  Sec.  8,  Art.  5,  of  the  consti- 
tution provides: 

305 


Causes  and  Cures  of  Crime 

"The  Governor  shall  have  power  to  grant  re- 
prieves, commutations  and  pardons  after  convic- 
tion, for  all  offenses  except  treason  and  cases  of 
impeachment;  upon  such  condition  and  with  such 
restrictions  and  limitations  as  he  may  think  proper, 
subject  to  such  regulations  as  may  be  provided 
by  law  relative  to  the  manner  of  applying  for 
pardons." 

Under  this  constitutional  provision  the  form 
of  clemency  usually  employed  by  the  Missouri 
Governors  was  the  unconditional  pardon.  This 
prevailed  with  few  exceptions  until  Joseph  W. 
Folk  became  Governor  in  1905.  Early  in  that 
year  the  author  of  this  volume,  as  Pardon  Attor- 
ney under  Governor  Folk,  prepared  the  first 
parole  order  ever  issued  in  the  State.  Substan- 
tially the  same  form  of  order  was  used  by  Gov- 
ernor Hadley,  who  succeeded  Governor  Folk,  and 
with  slight  changes  the  same  form  is  still  in  use 
under  the  present  Governor,  Elliott  W.  Major. 

This  order,  however,  strictly  speaking,  is  not 
a  parole,  and  the  Governor  has  no  power  under 
the  constitution  eo  nomine,  to  grant  a  parole.  The 
order  is  simply  a  commutation  of  the  sentence  un- 
der conditions  similar  to  those  usually  found  in  a 
parole.  However,  it  lacks  the  effectiveness  of  a 
parole,  inasmuch  as  the  State  has  no  parole  offi- 

306 


Indeterminate  Sentence  and  Parole 

cer,  nor  is  any  bond  required  for  the  observance 
of  the  parole  conditions.  The  system  has,  upon 
the  whole,  been  more  satisfactory  than  the  old 
system  of  unconditional  pardons.  The  system  of 
court  paroles,  however,  obtains  in  Missouri,  as  in 
most  other  States. 


MONTANA  (1907). 

1.  No  such  law. 

2.  No  provision. 

3.  State  Board  of  Prison  Commissioners. 

4.  To  consider  and  supervise  all  questions  of 
parole. 

5.  No  petitions  or  arguments  allowed. 

6.  First  offenders  for  felony  having  one-half 
of  term,  except  service  of  twelve  and  one-half 
years  where  term  was  more  than  twenty-five  years, 
and  life  prisoners  having  served  twenty-five  years, 
less  commutation  for  good  behavior. 

7.  Previous  history  and  character.  Record  in 
prison. 

8.  Report  regularly;  secure  employment,  and 
remain  in  State. 

9.  Any  violation  of  above  conditions. 

10.  Any  officer  with  warrant  of  Board  of  Com- 
missioners. 

307 


Causes  and  Cures  of  Crime 

11.  Loss  of  good  time;  punishment  in  the 
County  Jail,  or  return  to  complete  unexpired 
term. 

12.  Faithful  fulfillment  of  requirements. 

13.  The  Governor,  upon  recommendation. 

14.  Not  stated. 

15.  State  System. 

16.  Not  stated. 

17.  An  important  feature  in  securing  parole, 
is  recommendation  by  the  Warden  for  good  con- 
duct, service  and  diligence  in  performing  work  or 
labor  directed  by  the  Prison  Board.  This  System 
is  giving  satisfaction. 


NEBRASKA  (1911). 

1.  All  over  18  convicted  of  Penitentiary  of- 
fense, except  murder,  treason,  rape,  kidnaping  or 
having  served  two  previous  terms. 

2.  Provided  by  law. 

3.  State  Prison  Board  appointed  by  Governor 
— one  member  to  be  practicing  physician  and  one 
a  practicing  attorney. 

4.  To  investigate  record  of  trial  and  career  of 
prisoner  before  conviction;  to  call  upon  any  per- 
son for  information  as  to  capability  of  prisoner 

308 


Indeterminate  Sentence  and  Parole 

to  become  a  good  citizen;  examine  prison  record. 
To  make  Rules  for,  grant  and  imprison  for  breach 
of  parole.  Arrange  for  employment  and  secure 
suitable  homes  free  from  criminal  influences. 

5.  The  Secretary  of  Board  presents  applica- 
tions and  no  Petition  or  argument  allowed. 

6.  Those  having  served  the  minimum. 

7.  Prison  Record  and  ability  to  live  law-abid- 
ing life. 

8.  To  obey  the  law,  follow  honorable  and  use- 
ful employment  and  keep  free  from  criminal  in- 
fluence. 

9.  Violation  of  conditions  of  parole,  or  com- 
mission of  new  crime. 

10.  Board  order  to  Warden  certified  by  Secre- 
tary directed  to  any  officer.     No  fees. 

11.  Service  of  unexpired  maximum,  and  if  re- 
turned for  new  crime,  second  sentence  follows 
termination  of  former. 

12.  Six  months'  faithful  observance  of  parole 
requirements.  Secretary  reports  to  Board,  who 
issues  certificate,  which  is  sent  to  Governor. 

13.  Governor  upon  recommendation  of  Board. 

14.  One,  (up  to  April  6,  191 2). 

15.  General,  (although  not  specified). 

16.  Fifty-two  (on  April  6).     Of  this  number, 

309 


Causes  and  Cures  of  Crime 

thirty-four  under  present,  and  eighteen  under  old 
law. 

17.  The  general  public  consider  the  system  sat- 
isfactory. When  prisoners  are  released  they  are 
provided  with  clothing,  $10.00  in  money  and 
transportation  to  place  of  employment. 


NEW  HAMPSHIRE  (1909). 

1.  Any  convict  sentenced  to  State  Prison,  ex- 
cept for  life,  or  as  habitual  criminal, 

2.  Provided  by  law  for  each  offense. 

3.  Governor  and  Council. 

4.  Have  complete  charge  of  parole. 

5.  Automatically,  no  petitions  needed. 

6.  Automatically  at  expiration  of  minimum 
sentence  if  obedient  to  the  Rules;  otherwise  Gov- 
ernor and  Council  determines. 

7.  Ability  to  live  orderly  and  become  good 
citizen. 

8.  Report  monthly  and  oftener,  if  requested, 
avoid  bad  company,  obey  the  laws. 

9.  Any  violation  of  above  conditions. 

10.  Parole  OiBcer  makes  complaint  before 
any  Justice  of  the  Peace,  who  issues  warrant.  No 
fees.  * 

310 


Indeterminate  Sentence  and  Parole 

11.  Serve  maximum,  time  upon  parole  not  con- 
sidered. 

12.  Faithful  observation  until  expiration  of 
maximum. 

13.  The  Governor. 

14.  Twenty-seven  (on  May  i,  1912). 

15.  State  system. 

16.  Sixty-one  (May  i,  19 12). 

17.  General  satisfaction  with  both  the  Parole 
and  Indeterminate  Laws.  The  Chaplain,  who  is 
the  Parole  Officer  in  this  State,  has  supervision 
of  parole  matters. 


NEW  JERSEY  (1911). 

1.  All  convicts  sent  to  State  Prison,  except  first 
degree  murder. 

2.  Maximum  as  provided  by  law;  minimum 
not  less  than  one  year,  and  not  more  than  one-half 
of  maximum.  Where  death  sentence  has  been 
commuted,  minimum  must  be  twenty-five  years. 

3.  Board  of  Pardons,  composed  of  six  lay 
Judges  of  the  Court  of  Errors,  the  Chancellor 
and  Governor.  Under  Indeterminate  Sentence 
Law,  Board  of  Inspectors  of  the  Prisons  are  also 
vested  with  parole  power  at  expiration  of  mini- 

...J  3" 


Causes  and  Cures  of  Crime 

mum  sentence,  but  Inspectors  can  only  act  after 
approval  by  Governor. 

4.  To  remit  fines,  parole,  commute  sentences 
and  restore  rights  of  citizenship. 

5.  No  one  except  applicant  is  permitted  to 
argue  before  the  Board.  Counsel  may  file  Peti- 
tion. 

6.  Prisoners  whose  minimum  term  is  about  to 
expire. 

7.  Circumstances  surrounding  the  case;  prison 
record,  previous  history,  prospects  of  employ- 
ment, ability  and  desire  to  lead  correct  life  and 
maintain  self  by  honest  labor. 

8.  Avoid  evil  company,  avoid  all  forms  of 
liquor,  live  industriously,  honestly  and  report  reg- 
ularly.   Must  not  leave  State  without  permission. 

9.  Any  breach  of  above  requirements. 

10.  Any  duly  authorized  officer.  Expenses 
only. 

11.  Service  of  balance  of  term  subject  to  future 
action  by  Board. 

12.  Faithfully  observing  conditions  of  parole 
until  maximum  has  expired.  Prisoners  on  parole 
can  earn  commutation  and  thus  have  maximum 
expire  sooner. 

13.  Automatically  at  expiration  of  maximum; 

312 


Indeterminate  Sentence  and  Parole 

which  can  be  advanced  by  living  a  law-abiding 
life. 

14.  Thirty-five   (until  January  i,   191 2). 

15.  State  System  (but  permission  can  be  se< 
sured  to  leave  State). 

16.  1,370  (since  inception  of  Parole  Law  in 
1905)1   104  during  1911. 

17.  The  Parole  system  is  considered  very  suc- 
cessful, and  is  being  extended  under  the  Indeter- 
minate Sentence  Law.  Eleven  prisoners  have 
also  been  twice  paroled  successfully.  It  has  also 
been  made  applicable  to  prisoners  serving  flat 
sentences,  the  minimum  being  computed  to  one- 
half  of  a  maximum,  which  the  Court  of  Pardons 
may  determine. 

NEW  MEXICO  (1909). 

1.  All  prisoners  sentenced  to  Penitentiary. 

2.  Court  fixes  minimum  and  maximum. 

3.  Prison  Board  composed  of  the  Board  of 
Penitentiary  Commissioners  and  Superintendent 
of  the  Penitentiary.  Governor  must  approve  rec- 
ommendations. 

4.  Investigate  the  record  of  the  crime,  previous 
history  as  to  industry  and  character,  to  parole, 
rearrest,  and  generally  supervise  prisoners. 

313 


Causes  and  Cures  of  Crime 

5.  No  petition  or  application  allowed. 

6.  All  prisoners  having  served  minimum  except 
those  having  served  two  previous  terms  in  any 
Penitentiary. 

7.  Prison  record  showing  improvement  or  de- 
terioration of  character  and  probability  of  becom- 
ing a  law-abiding  citizen.  Personal  history  and 
complete  prison  record. 

8.  Total  abstinence  from  alcoholic  liquors. 
Permanent  employment.  A  proper  and  suitable 
home  free  from  criminal  influences. 

9.  Faithful  observance  of  the  requirements. 

10.  Warrant  of  Superintendent  of  Peniten- 
tiary to  any  authorized  officer.  Fees  same  as  or- 
dinary criminal  process. 

IT.  Service  of  unexpired  maximum,  additional 
imprisonment  and  time  on  parole  not  counted. 

12.  Superintendent  keeps  In  communication 
with  all  prisoners.  When  prisoner  has  served 
not  less  than  six  months  of  his  parole  acceptably, 
Superintendent  reports  to  Board,  which  recom- 
mends final  discharge.  Said  recommendation  is 
sent  to  Trial  Judge,  who  enters  order,  which  upon 
approval  of  Governor,  constitutes  complete  dis- 
charge. 

13.  Superintendent  reports  to   Board  to   rcc- 

314 


Indeterminate  Sentence  and  Parole 

ommend  to  Trial  Judge,  who  certifies  to  Gov- 
ernor, who  finally  discharges  him. 

14.  Not  given. 

15.  General. 

16.  Not  given. 

17.  This  System  is  regarded  very  favorably. 
All  prisoners  released  upon  parole  are  supplied 
with  suitable  clothing,  $5.00  in  money,  and  trans- 
portation to  place  of  employment. 


NEW  YORK   (1889-1909). 

1.  All  first  offenders  convicted  of  felonies 
other  than  murder  of  first  or  second  degree. 

2.  In  all  cases  where  the  law  provides  maxi- 
mum of  five  years  or  less;  the  maximum  to  be  as 
prescribed  by  law,  the  minimum  to  be  not  less 
than  one  year;  where  minimum  is  fixed  by  law, 
not  less  than  such  minimum  and  the  maximum  not 
more  than  the  longest  period  fixed  by  law.  For 
second  degree  murder  a  minimum  of  twenty  years 
and  the  maximum  of  life. 

3.  Board  of  Parole  for  State  prisoners  com- 
posed of  three  members — Superintendent  of  Pris- 
ons, and  two  oppointces  of  Governor  with  con- 
sent of  Senate, 

315 


Causes  and  Cures  of  Crime 

4.  To  regulate  the  system  of  credits  to  be 
earned  by  prisoners  as  a  condition  of  release  by 
parole  to  investigate  and  recommend  for  and 
control  prisoners  on  parole. 

5.  Prisoners  apply  in  writing;  no  other  form 
allowed. 

6.  All  prisoners  having  served  minimum. 

7.  Criminal  character,  conduct,  record  of  de- 
meanor, education  and  labor  while  in  prison. 

8.  Indulge  in  no  injurious,  unlawful  or  vicious 
habits.  Shall  avoid  persons  or  places  of  disreput- 
able or  harmful  character;  report  regularly;  per- 
mit visit  from  Probation  Officer  at  abode  or 
elsewhere;  answer  all  reasonable  inquiries  as  to 
conduct  or  condition;  work  faithfully  at  suitable 
employment;  remain  or  reside  within  a  specified 
place  or  locality;  abstain  for  a  reasonable  period 
from  use  of  alcoholic  beverages ;  make  reparation 
or  restitution  for  losses  caused  by  offense;  support 
wife  or  children. 

9.  Breach  of  any  above  conditions. 

10.  Warrant  to  any  officer  from  Agent  or 
Warden  or  any  member  of  Board.  Regulation 
fees  as  in  other  cases. 

11.  Service  of  unexpired  maximum  unless 
sooner  released  again  on  parole. 

12.  When  the  Board  consider  convict  will  live 

316 


Indeterminate  Sentence  and  Parole 

and  remain  at  liberty  without  violating  the  law; 
or  upon  action  of  Governor. 

13.  The  Board,  if  serving  indeterminate  sen- 
tence; Governor  upon  recommendation  of  Board 
if  original  sentence  was  determinate. 

14.  704,  on  January  i,  1912. 

15.  State  System  (although  permits  have  been 
granted  to  return  to  home  State). 

16.  Total  paroled  October  i,  191 1,  3,894. 
On  that  date  there  were  at  large  in  good  stand- 
ing, 66^^  and  delinquent  413. 

17.  Note. — Over  83  per  cent  of  the  prisoners 
paroled  in  19 10  and  over  81^  per  cent  in  191 1, 
made  good.  There  is  also  a  system  for  paroling 
prisoners  who  have  received  flat  sentences.  The 
entire  Parole  system  is  considered  favorably. 


NORTH  DAKOTA  ( 1 9 1 1 ) . 

1.  Anyone  convicted  of  felony. 

2.  Maximum  prescribed  by  law;  minimum  de- 
termined by  Board. 

3.  Board  of  Experts,  consisting  of  Warden, 
Prison  Physician,  a  Prison  Chaplain  and  one 
other  person  designated  by  the  Board  of  Control. 

4.  Meet   monthly;   pass    on    applications    for 

317 


Causes  and  Cures  of  Crime 

parole  and  applications  for  release  under  Indeter- 
minate Sentence. 

5.  Blanks  furnished;  no  oral  arguments  al- 
lowed, but  written  argument  may  be  submitted 
by  attorneys  or  others. 

6.  Anyone  having  served  minimum  term;  em- 
ployment must  be  secured  and  employer  recom- 
mended by  Judge  of  his  County  Court;  must 
deposit  $20.00,  and  employer  agrees  to  retain 
25  per  cent  of  wages  to  deposit  with  Warden 
until  $100.00  is  on  deposit;  good  record  at  Peni- 
tentiary for  six  months. 

7.  Prison  record;  nature  and  character  of 
crime  committed;  previous  record  and  environ- 
ment; information  gained  from  personal  interview 
with  applicant;  probable  surroundings  if  paroled. 

8.  To  refrain  from  crime,  to  lead  an  honor- 
able life;  to  remain  within  the  State;  to  proceed 
at  once  to  place  of  employment,  to  remain  there 
until  granted  permission  to  leave;  to  report  regu- 
larly; to  conduct  himself  honestly,  avoid  evil  as- 
sociations, obey  the  law,  and  abstain  from  the 
use  of  intoxicating  liquors;  to  immediately  report 
to  sponsor  and  show  parole  and  enter  upon  em- 
ployment provided  for  him. 

9.  Anything  within  discretion  of  the  Board  of 
Experts. 

318 


Indeterminate  Sentence  and  Parole 

10.  Any  officer.  Regulation  fees,  but  not  to 
exceed  $100.00. 

11.  Service  of  balance  of  maximum;  time  on 
parole  excluded. 

12.  Expiration  of  the  maximum. 

13.  Warden  of  the  Penitentiary. 

14.  No  violations  up  until  April  4,  191 2. 

15.  State  system. 

16.  35,  up  to  April  4,   1912. 

17.  The  law  is  considered  very  favorably  in 
this  State.  Certain  inmates  cannot  be  paroled; 
namely,  a  person  convicted  and  sentenced  for 
first  or  second  degree  murder,  and  a  person  finally 
convicted  in  any  jurisdiction  of  felony  other  than 
that  for  which  he  is  being  punished.  The  Gov- 
ernor also  must  approve  and  endorse  the  recom- 
mendation for  parole. 


OHIO  (1891). 

1.  Compulsory  with  all  prisoners  sent  to  the 
State  Reformatory,  and  optional  with  prisoners 
sent  to  State  Penitentiary. 

2.  Optional  with  Trial  Judge,  but  minimum 
cannot  be  less  than  prescribed  by  law  for  offense 

319 


Causes  and  Cures  of  Crime 

committed,  nor  maximum  greater  than  prescribed 
by  law. 

3.  Board  of  Administration,  composed  of 
eight  members — a  President  and  two  other  lay 
members,  a  Physician,  a  Fiscal  Supervisor,  a 
Mechanical  Engineer,  a  Secretary  and  a  Parole 
Secretary. 

4.  Supervise  the  entire  parole  system. 

5.  Blanks  are  supplied  by  the  Chaplain  and 
no  other  form  of  Petition  allowed;  no  argument 
allowed. 

6.  Those  recommended  by  the  Warden  and 
Chaplain,  who  have  served  a  minimum  of  not 
less  than  one  year,  whose  conduct  in  prison  has 
been  of  the  first  grade  for  six  months  prior  to 
application;  who  have  never  been  convicted  of  fel- 
ony heretofore,  and  in  cases  of  life  prisoners, 
those  who  have  served  twenty-five  years.  An 
agreement,  from  a  reliable  property  owner  certi- 
fied from  the  Auditor  of  the  County  that  he 
is  a  property  owner,  that  he  will  give  prisoner 
employment  upon  release. 

7.  Previous  history,  prison  record,  ability  to 
become  law-abiding  citizen. 

8.  To  immediately  report  to  employer,  to 
show  certificate  of  parole  and  remain  in  employ 
during  term  of  parole  unless  change  is  authorized 

320 


Indeterminate  Sentence  and  Parole 

by  parole  secretary;  to  report  regularly;  to  re- 
main within  State;  to  live  honestly,  avoid  evil 
associations;  obey  the  law  and  abstain  from  the 
use  of  intoxicating  liquors. 

9.  Anything  in  the  opinion  of  the  Board  of 
Administration  or  Field  Officer  contrary  to  agree- 
ment. 

10.  Any  authorized  officer;  no  fees  set  forth. 

11.  Serve  unexpired  period  of  maximum, 
period  of  probation  not  to  be  counted. 

12.  Upon  certificate  showing  faithful  compli- 
ance with  parole  agreement. 

13.  Board  of  Administration  and  Wardens. 

14.  14  per  cent  in  21  years. 

15.  State  System. 

16.  2,180. 

17.  General  satisfaction  is  felt  in  Ohio  with  this 
system.  The  separate  Board  of  Administration 
is  a  new  feature  of  the  law  making  the  parole 
and  pardon  of  prisoners  entirely  independent  of 
each  other. 

OKLAHOMA. 

1.  No  such  law. 

2.  No  provision. 

3.  The  Governor. 

321 


Causes  and  Cures  of  Crime 

4.  As  set  forth  in  the  Constitution. 

5.  No  provision. 

6.  At  any  time. 

7.  Any  points  that  may  be  desired  by  the  Gov- 
ernor. 

8.  The  Governor  has  the  right  to  impose  any 
conditions  in  his  discretion.  Those  usually  im- 
posed are  that  prisoner  abstain  from  use  or 
handling  of  intoxicating  liquors;  refrain  from 
gambling  or  conduct  games  of  chance;  find  in- 
dustrious employment;  avoid  evil  associates  and 
improper  places  of  amusement;  obey  the  laws 
and  conduct  oneself  in  all  respects  as  an  upright 
citizen.  Report  as  to  whereabouts  and  occupa- 
tion. 

9.  Any  violation  of  the  law  or  the  conditions 
of  parole. 

10.  Any  sheriff  or  police  officer  of  the  state. 
No  fees. 

11.  Service  of  unexpired  balance  of  original 
sentence. 

12.  Service  of  entire  sentence,  unless  discharged 
sooner  by  the  Governor. 

13.  The  Governor,  or  automatically  at  expira- 
tion of  sentence. 

14.  Forty-two  (on  March  29,  1912). 

322 


Indeterminate  Sentence  and  Parole 

15.  State  or  general,  as  prescribed  by  the  Gov- 
ernor. 

16.  About  150  (on  March  29,  1912). 

17.  This  system  has  given  general  satisfaction. 


PENNSYLVANIA  (1909-11). 

1.  Any  person  sentenced  to  the  penitentiary. 

2.  In  the  discretion  of  the  trial  judge,  but 
maximum  cannot  be  more  than  prescribed  by  law. 

3.  Board  of  five  prison  inspectors  for  each 
penitentiary,  who  report  to  the  Board  of  Pardons 
— consisting  of  Lieutenant  Governor,  Secretary  of 
the  Commonwealth,  Attorney  General  and  Sec- 
retary of  Internal  Affairs,  three  of  whom  must 
recommend  to  the  Governor  for  final  action. 

4.  To  investigate,  make  rules  and  regulations, 
and  send  report  to  the  Governor  with  favorable  or 
unfavorable  recommendation. 

5.  Petition  is  made  by  applicant  but  no  argu- 
ment allowed. 

6.  Persons  having  served  minimum  and  in  good 
standing.  Application  can  be  filed  any  time  within 
three  months  of  the  expiration  of  minimum  term. 

7.  There  are  no  other  indictments  pending 
against  applicant;  that  the  Warden  and  Chaplain 

323 


Causes  and  Cures  of  Crime 

recommend  parole ;  that  the  applicant  has  a  spon- 
sor who  will  report  regularly;  a  complete  state- 
ment from  the  prisoner  concerning  past  record; 
applicant  shall  give  reasons  why  parole  should 
be  granted.  Applicant  must  be  in  honor  class 
showing  record  in  prison. 

8.  Must  secure  a  sponsor;  must  live  law-abid- 
ing life ;  must  report  regularly ;  must  keep  employ- 
ment; must  not  leave  state  without  permission. 
Sponsor  must  report  monthly  as  to  the  conduct 
of  his  charge  and  the  number  of  days  employed 
during  the  month.  Parole  must  leave  specimen 
of  handwriting  with  Board;  must  furnish  Board 
with  names  and  addresses  of  all  immediate  rela- 
tives and  the  name  of  all  persons  who  might  mali- 
ciously interfere  with  the  convict's  attempt  to  live 
a  law-abiding  life. 

9.  Any  breach  of  parole  conditions. 

10.  Any  officer;  no  fees  specified. 

1 1.  Imprisonment  for  the  balance  of  unexpired 
maximum  (time  on  parole  not  to  be  considered) 
unless  again  released  on  parole,  or  pardoned. 

12.  Expiration  of  maximum  or  the  Board  of 
Inspectors  may  sooner  recommend  absolute  par- 
don to  the  Board  of  Pardons,  who  recommend  to 
the  Governor. 

324 


Indeterminate  Sentence  and  Parole 

13.  Automatically  at  expiration  of  term,  or 
upon  pardon  by  the  Governor. 

14.  28  (from  July  6,  1909,  until  December 
31,  1911). 

15.  State  system,  but  permission  may  be  ob- 
tained for  employment  outside  state  if  home  is 
maintained  within  state. 

16.  978  (from  July  6,  1909,  to  December  31, 
1911). 

17.  The  Indeterminate  sentence  and  Parole 
system  have  met  with  the  general  approval  of  all 
humanitarians  and  persons  who  best  know  the 
criminal.  A  system  of  parole  has  also  been  estab- 
lished applying  to  inmates  of  county  prisons, 
workhouses  and  reformatories.  This  system  is 
entirely  under  the  control  of  the  trial  judge,  who 
can  parole  and  re-parole  in  his  discretion. 


SOUTH  DAKOTA  ( 1 9 1 1 ) . 

1.  All  first  offenders  over  16,  subject  to  a  peni- 
tentiary sentence,  except  for  treason  or  murder, 
or  convicts  with  abnormal  tendencies. 

2.  Prescribed  by  law. 

3.  The  Board  of  Charities  and  Corrections,  in- 
cluding one  Parole  Officer. 

325 


Causes  and  Cures  of  Crime 

4.  To  regulate  the  parole  of  prisoners  and  co- 
operate with  them  while  on  parole. 

5.  Prisoner  may  petition.     No  argument. 

6.  Those  having  served  minimum. 

7.  Character  of  applicant;  standing  during 
confinement  and  the  party  with  whom  he  is  pa- 
roled. 

8.  Absolute  good  behavior  and  attempt  to  re- 
form. 

9.  Any  attempt  at  wrong  doing. 

10.  Any  officer;  no  fees  prescribed. 

11.  Returned  to  the  prison  to  serve  maximum. 

12.  Faithfully  observing  parole  conditions  un- 
til maximum  has  expired. 

13.  Order  of  Warden  and  Board  of  Charities 
and  Corrections  at  expiration  of  parole. 

14.  Three  (on  April  3,  19 12). 

15.  State  system. 

16.  Twenty-five. 

17.  The  general  opinion  is  the  Parole  laws 
work  for  the  good  of  the  prisoner,  and  are  re- 
garded satisfactorily. 


TEXAS  (1911) 

1.  No  such  law. 

2.  As  prescribed  by  law. 

326 


Indeterminate  Sentence  and  Parole 

3.  Three  Prison  Commissioners,  requiring  the 
approval  of  the  Governor. 

4.  To  regulate  the  whole  system  of  parole  of 
prisoners. 

5.  No  arguments  allowed;  a  petition  may  be 
presented  with  the  application. 

6.  Any  prisoner  with  good  conduct  for  twelve 
months,  who  has  served  the  minimum  term  for  the 
offense  of  which  convicted. 

7.  Trustworthiness  and  suitable  employment. 

8.  Must  report  promptly  to  employer,  work 
and  conduct  himself  properly  at  all  times.  Make 
monthly  reports  of  work,  money  earned,  expended 
and  saved;  with  varification  by  employer. 

9.  Any  matter  in  the  discretion  of  the  Commis- 
sion. 

10.  Any  officer,  upon  Commission's  warrant. 
Reward  of  $25.00  is  paid. 

11.  Loses  credit  for  all  good  time,  is  fined  25 
cents  a  day  for  all  good  time  lost,  to  be  taken  out 
of  the  per  diem  of  10  cents  which  is  allowed  under 
the  law.    Must  serve  balance  of  maximum. 

12.  Automatically,  at  the  expiration  of  time 
originally  given  in  sentences,  but  Commission  has 
power  to  grant  absolute  discharge  in  deserving 
cases  before  the  expiration  thereof. 

13.  Automatically  or  by  the  Commission. 

327 


Causes  and  Cures  of  Crime 

14.  Three  (since  March  11,  191 1). 

15.  State  system. 

16.  Forty-nine. 

17.  The  law  is  not  generally  understood,  but 
has  not  been  given  sufficient  time  to  secure  confi- 
dence of  the  people. 


WISCONSIN  (1907). 

1.  No  such  law. 

2.  No  such  provision. 

3.  State  Board  of  Control  of  five  members. 

4.  Meet  quarterly;  consider  applications  for 
parole.    All  applicants  are  interviewed  personally. 

5.  The  Board  considers  all  literature  submitted, 
but  no  verbal  argument  allowed. 

6.  Prisoners  in  State  Prison  who  have  served 
one-half  of  sentence,  except  life  termers  who  can 
not  be  considered  until  they  have  served  30  years, 
less  commutation,  which  is  16  years  and  three 
months.  No  convict  previously  convicted  of  fel- 
ony is  eligible. 

7.  Previous  history,  prison  record,  future  pros- 
pects as  to  becoming  law-abiding  citizen. 

8.  Secure  satisfactory  employment,  and  both 
applicant  and  parole  guardian  report  monthly. 
Must  not  use  intoxicating  liquors. 

328 


Indeterminate  Sentence  and  Parole 

9.  Fail  to  perform  duties  imposed;  submit  false 
reports  or  commit  new  offense. 

10.  Parole  officer;  no  fee. 

11.  Must  serve  balance  of  unexpired  sentence. 

12.  Automatically,  at  the  expiration  of  sen- 
tence, less  commutation  for  good  behavior. 

13.  Warden  of  the  State  Prison. 

14.  About  12   (since  1907). 

15.  State  System. 

16.  200  (on  March  26,  1912). 

17.  This  law  has  given  great  satisfaction;  more 
than  400  have  been  paroled  since  1907,  with  very 
few  violations.  A  Parole  officer  is  constantly 
traveling,  looking  after  paroled  convicts  and  mak- 
ing reports  as  to  their  present  conditions. 


WYOMING  (1909). 

1.  All  convicts  sentenced  to  penitentiary  oth- 
erwise than  for  life. 

2.  The  maximum  not  longer  than  maximum 
fixed  by  law,  and  minimum  not  less  than  minimum 
prescribed.    Both  can  be  regulated  by  trial  judge. 

3.  Pardon  Board  composed  of  five  members, 
who  are  elected.  The  Governor  issues  parole 
upon  their  recommendation. 

329 


Causes  and  Cures  of  Crime 

4.  Consider  the  question  of  parole  and  make 
recommendations  to  cover  the  same. 

5.  Prisoner  applies  to  the  Board  through  the 
Warden  of  penitentiary,  upon  blank  applications. 
No  other  petition  allowed  nor  argument  per- 
mitted, 

6.  No  parole  will  be  granted  to  any  prisoner 
who  has  returned  from  parole  as  a  delinquent; 
who  has  served  a  previous  term  in  any  peniten- 
tiary; who  has  not  served  the  minimum  term 
fixed  by  law,  or  the  minimum  term  fixed  at 
the  time  of  sentence  by  the  trial  judge;  who 
has  violated  any  of  the  rules  of  the  peniten- 
tiary within  six  months  prior  to  his  application, 
or  who  has  committed  an  assault  with  a  deadly 
weapon  upon  any  officer,  employee  or  other  con- 
vict in  the  state  penitentiary. 

7.  Previous  history,  previous  associations, 
prison  record,  ability  to  become  law-abiding 
citizen. 

8.  Secure  employment,  report  regularly,  re- 
main in  state  unless  granted  permission  to  remove; 
abstain  from  use  of  intoxicating  liquor,  avoid  evil 
associations,  avoid  improper  places  of  amusement, 
live  law-abiding  life. 

9.  Violation  of  any  of  above,  or  any  special 
conditions  imposed. 

330 


'  Indeterminate  Sentence  and  Parole 

10.  Any  officer  specified  in  a  warrant  from 
the  Governor.  The  fees  as  for  ordinary  criminal 
process. 

11.  Service  of  the  balance  of  unexpired  maxi- 
mum. 

12.  Automatically  at  expiration  of  maximum, 
or  sooner,  if  commutation  for  good  behavior  re- 
duces maximum. 

13.  Automatically. 

14.  Four  (since  February,   1909). 

15.  State  System  (but  permission  may  be  se- 
cured to  go  elsewhere). 

16.  Forty-two  (between  February  24,  1909, 
and  April  2,  191 2). 

17.  This  law  is  favorably  regarded.  Efforts 
which  prisoners  have  made  to  live  up  to  the  re- 
quirements of  parole,  indicate  this  law  was  a  step 
in  the  right  direction.  The  State  Board  of  Chari- 
ties and  Reform  continually  keep  in  touch  with 
paroled  prisoners,  counsel  and  advise  them. 


That  the  indeterminate  sentence  and  parole  is 
highly  practical  in  its  results  is  illustrated  by  some 
recent  statistics  from  the  State  of  California. 
State  Parole  Officer  E.  H.  Whyte,  in  a  monthly 
report  to  the  California  State  Board  of  Prison 
Directors,  issued  in  1912,  showed  that  1,197  "^^" 

331 


Causes  and  Cures  of  Crime 

paroled  from  San  Quentin  earned  $748,679.85, 
and  saved  out  of  that  amount  a  total  of  $190,- 
499.12;  while  a  total  of  400  men  paroled  from 
Folsom  earned  $252,524.02,  and  saved  $60,- 
984.78 — a  grand  total  of  $1,003,203.87  earned, 
and  $251,483.90  saved. 

A  review  of  Mr.  Whyte's  report  for  May, 
19 1 2,  which  follows,  can  leave  no  doubt  as  to  the 
efficacy  of  the  parole  in  California: 

"Parole  Officer  Whyte's  report  for  the  month 
on  this  same  subject  is  illuminating,  as  showing  the 
workings  of  the  parole  system,  which  requires  of 
each  man  thus  liberated  a  monthly  report  of  his 
conduct,  his  cash  account,  his  manner  of  earning  a 
living,  his  associates. 

"The  earnings  of  all  the  men  on  parole  in  the 
month  of  May  were  $16,848.28;  their  expenses 
were  $12,532.16;  their  savings,  $4,316.12.  This 
statement  refers  to  465  men  on  parole  at  the  be- 
ginning of  the  month — 342  from  San  Quentin 
and  123  from  Folsom.  They  are  at  work.  The 
terms  of  their  parole  demand  that  they  be  con- 
tinuously employed.     Idleness  breeds  crime. 

"Whyte  in  the  course  of  his  month's  work  must 
get  a  report  from  every  man  under  his  super- 
vision. His  report  tells  that  he  has  received  visits 
at  his  office  from  170  and  has  himself  called  on 

"Almost  as  illuminating  as  the  record  of  the 
332 


Indeterminate  Sentence  and  Parole 

paroled  men's  wage-earning  ability  is  the  record 
of  violations.  Whyte  in  his  report  goes  back  to 
the  year  1893,  and  shows  that  of  the  1,637  ^^^ 
released  on  parole,  1,388  'made  good.'  That  is, 
84.8  per  cent  kept  the  faith  with  the  prison  direc- 
tors and  fully  justified  the  confidence  reposed  in 
them. 

"Since  1893  only  249  men  violated  the  strict 
conditionsof  their  parole — that  is,  entered  saloons, 
left  the  state,  failed  to  report  or  neglected  the 
smaller  rules  set  up  for  their  own  protection,  as 
well  as  the  safeguarding  of  society  at  large.  Of 
this  number,  153  were  returned  to  the  peniten- 
tiaries. Of  these  249,  too,  only  22  committed 
new  crimes.  That  is,  out  of  1,637  paroled  men 
only  22,  or  1.3  per  cent,  went  back  to  a  life  of 
lawlessness. 

"The  success  of  the  parole  law  is  therefore 
wonderfully  demonstrated  by  a  ratio  of  1.3  per 
cent,  of  disappointing  ones  to  98.7  per  cent  of 
men  who,  once  gone  wrong,  took  advantage  of 
the  opportunity  to  keep  out  of  further  trouble." 

It  is  doubtful  if  there  has  ever  been  accom- 
plished a  greater  or  more  beneficent  reform  than 
that  which  is  being  worked  out  through  the  inde- 
terminate sentence  and  parole.  The  system,  to 
be  sure,  is  not  yet  perfect.  Improvements  must 
be  made  in  the  direction  of  still  greater  flexibility 
in  order  to  complete  the  work  of  individualiza- 
tion.   Strictly  speaking,  to  be  purely  indeterminate 

333 


Causes  and  Cures  of  Crime 

a  sentence  should  be  without  either  maximum  or 
minimum.  Moreover,  too  great  technicality 
should  be  avoided  in  the  formation  of  rules  for 
the  parole  boards.  The  discretion  of  the  board 
should  be  practically  unlimited,  and  the  board 
should  in  all  cases  have  power  to  waive  compliance 
with  technical  rules  in  order  that  all  conceivable 
cases  may  be  brought  within  the  scope  of  its 
beneficent  powers. 


334 


CHAPTER  X. 

The  New  Penology.  . 

First  of  all,  the  new  penology  demands  the  abo- 
lition of  the  penitentiary  system.  The  peniten- 
tiary is  an  anachroism.  It  does  not  belong  to 
modern  civilization.  It  belongs  to  the  day  of  the 
Bastile.  It  has  destroyed  more  men  than  it  has 
ever  made,  and  wrecked  more  lives  than  it  has 
ever  saved.  A  few  have  been  reformed  in  spite 
of  it;  none  because  of  it.  Most  men  who  have 
strayed  from  the  paths  of  rectitude  can  be  led 
again  into  the  ways  of  righteousness  and  peace; 
none  can  be  driven  to  aught  but  savagery.  Here 
is  sharply  drawn  the  line  of  demarcation  between 
the  old  penology  and  the  new. 

Imprisonment  is  not  primarily  for  the  purpose 
of  punishment.  Its  primary  function  is  to  segre- 
gate the  individual  from  society  for  the  purpose 
of   accomplishing  his   regeneration;   other   func- 

335 


Causes  and  Cures  of  Crime 

tions  being  subsidiary  and  incidental.  To  achieve 
that  result  he  must  be  surrounded  by  every  pos- 
sible educative  and  uplifting  influence.  The  peni- 
tentiary, therefore,  must  give  way  to  the  reform- 
atory. 

The  reformatory  system  does  not  imply  free- 
dom from  restraint,  or  total  lack  of  punishment. 
But  it  does  involve  the  idea  of  mental  and  physi- 
cal training,  a  graduated  scale  of  rewards  and 
punishments,  and  segregation  by  means  of  an 
individual  cellular  system,  as  fundamental  fea- 
tures of  the  carceral  idea. 

Olivecrona^  ascribed  the  prevalence  of  recidi- 
vation  in  Sweden  to  the  vices  of  the  penitentiary 
system,  "and  to  the  custom  of  submitting  young 
offenders  to  the  same  discipline  as  adults."  As  to 
this  there  is  no  substantial  difference  of  opinion 
among  criminologists  anywhere  in  the  world.  The 
herding  together  of  men  in  large  numbers  and 
the  indiscriminate  commingling  of  criminals  of  all 
types,  ages,  and  conditions,  selling  them  into  slav- 
ery under  the  contract  labor  system  without  re- 
gard to  proper  industrial  training,  demanding 
the  performance  of  set  tasks  which  are  fixed  with- 
out regard  to  the  physical  or  mental  powers  of 
the  convict,  the  placing  of  numbers  of  prisoners 

1  Des  Causes  ce  la  Recidlvie. 


The  New  Penology 


Fig.  4. — Ludwlg's  Kymographton. 


Fig.    5.— Hlpp-Chronoscopa.  Fig.   6. — ^Vernier  Chronoecops 

(Sanford.) 

337 


Causes  and  Cures  of  Crime 

in  the  same  cell  at  night,  united  with  a  total  want 
of  educative,  uplifting  and  refining  influence,  will 
malce  of  any  penitentiary  a  cess-pool  of  crime, 
into  which  some  good  may  enter,  but  from  which 
none  can  proceed.  These  conditions  are  aggra- 
vated by  the  unhappy  disposition,  only  too  appar- 
ent in  a  majority  of  the  United  States,  to  make 
of  all  penal  institutions  a  part  of  a  political  spoils 
system  which,  in  so  far  as  it  may  result  in  placing 
men  of  low  mentality  and  incorrect  ideals  in 
charge  of  criminals,  is  utterly  and  inexcusably 
vicious.  All  official  deviations  from  the  standards 
of  honor  and  honesty  are  quickly  noticed  by  the 
inmates  of  a  penal  institution,  and  where  these 
men  are  in  charge  of  officers  who  are  no  better 
than  their  wards  all  hope  of  general  and  perma- 
nent reform  among  the  inmates  is  lost.  These 
evils,  however,  are  not  peculiar  to  the  penitentiary 
system,  though  existing  there,  no  doubt,  in  a 
greater  degree  than  elsewhere.  But  when  found 
in  reformatories  they  are  even  more  harmful. 
The  reformatory,  however,  when  properly  offi- 
cered, offers  an  opportunity  for  individualization 
of  punishment  such  as  no  penitentiary  can  afford. 
The  first  efforts  at  reformation  naturally  begin 
with  the  first  offense.  Most  civilized  nations  are 
now  attempting  to  put  into  practice  the  maximum 

338 


The  New  Penology 


Fig.  8.— Deprez  Slgna 


'If 


Fig.  9. — JEstbesiometer. 

339 


Causes  and  Cures  of  Crime 

of  the  Roman  law,  moneat  lex  antequam  puniat — 
"let  the  law  warn  before  It  punishes."  In  the 
case  of  the  first  offender,  without  circumstances 
of  aggravation,  and  especially  if  the  culprit  be  a 
juvenile  offender,  he  is  released  upon  probation  or 
parole,  with  bond,  in  some  jurisdictions,  and  in 
other  jurisdictions  without  bond,  according  to  the 
gravity  of  the  offense;  the  court  admonishing  him 
that  any  future  misconduct  within  a  given  period 
will  be  requited  by  imprisonment.  Such  provisions 
with  reference  to  minor  offenses  have  been  carried 
into  the  codes  of  England,  Spain,  Russia,  Portugal, 
Denmark,  New  Zealand,  Australia,  Belgium, 
France,  some  of  the  Swiss  cantons,  and  a  majority 
of  the  United  States.  In  most  instances  the  parole 
or  release  upon  probation  amounts  merely  to  a 
suspension  of  sentence,  to  be  followed  by  ultimate 
discharge  upon  observance  of  the  terms  of  the 
suspension.  While  the  prisoner  is  at  large  he  is 
under  the  surveillance  of  a  probation  officer  or, 
in  some  States,  the  sheriff  of  the  court,  and  is 
required  to  give,  at  stated  Intervals,  a  satisfactory 
account  of  his  conduct.  In  some  of  the  United 
States  the  system  is  known  as  the  "court  parole." 
The  judges  revoke  the  parole  upon  breach  of  the 
conditions,  and  the  sentence  is  then  carried  into 
effect.     Under  this  system  reformation  Is  often 

340 


The  New  Penology 


Fig.  10.— Algometer.     (Cattell.) 


Fig.  11. — Psychograph.  (Sommer.) 


Fig.  12. — Sphygmometer.    (Blocb.) 

341 


Causes  and  Cures  of  Crime 

accomplished  without  any  imprisonment  at  all. 
When  imprisonment  is  necessary,  the  confinement 
should  be  either  in  a  reformatory  or,  in  some 
cases,  in  an  institution  for  the  criminal  insane.  As 
Lombroso  says,  "the  whole  world  is  agreed 
upon  one  point:  that  among  real  or  supposed 
criminals  there  are  many  who  are  insane." 

Among  the  more  depraved  criminals  there  are 
very  many  whose  confinement  in  such  an  institution 
would  be  better  for  society  and  for  themselves 
than  imprisonment  in  any  reformatory  or  in  the 
average  penitentiary.  Insanity  is  sometimes  so 
hard  to  detect,  because  of  its  many  elusive  and 
varying  types,  that  many  persons  reach  the  re- 
formatories and  penitentiaries  only  to  become  a 
menace  to  their  associates  and  keepers  as  well  as 
a  danger  to  themselves.  Unless  courts  and  juries 
believe  that  insanity  was  so  marked  as  to  have 
been  the  sole  cause  of  the  unlawful  act  and  that  the 
accused  was  wholly  irresponsible  at  the  time,  they 
are  very  apt  to  send  the  prisoner  to  an  institu- 
tion where  his  confinement  is  most  likely  to  jeop- 
ardize the  safety  of  others,  and  where  the  disci- 
pline is  not  arranged  to  suit  such  cases.  If  in  all 
such  cases  of  unquestioned  guilt  but  very  question- 
able mentality,  a  place  of  detention  were  pro- 
vided for  this  most  dangerous  class,  the  courts 

342 


The  New  Penology 


Fig.  13. — Sphygmomanometer.    (Basch.) 


Fig.  14. — Spring  Ergograph.    (Binet  and  Vaschide.) 


Fig.  15. — Dynamometer.    (Collin.) 

343 


Causes  and  Cures  of  Crime 

would  not  be  slow  to  make  use  of  it,  and  ac- 
quittals upon  the  ground  of  insanity  would  be 
much  less  frequent  than  they  are.  However, 
such  institutions,  I  believe,  exist  only  in  England 
and  a  very  few  of  the  United  States.  There  are 
none  at  all  upon  the  continent  of  Europe,  unless 
they  have  been  quite  recently  established. 

On  account  of  the  frequency  and  the  success 
of  the  plea  of  insanity  as  a  defense  to  criminal 
prosecution,  the  American  humorist,  "Mark 
Twain,"  once  proposed  that  insanity  should  by 
legislative  act  be  declared  a  felony.  But  the  end 
in  view  would  be  better  subserved  by  permitting 
the  court  to  convict  notwithstanding  insanity,  and 
order  the  prisoner  forthwith  to  be  confined  and 
treated  in  an  asylum  provided  for  the  detention  of 
insane  persons  who  commit  crimes.  When  the 
insanity  is  shown  at  a  criminal  trial,  there  is  so 
much  the  greater  reason  for  his  close  detention 
and  treatment  under  the  care  of  the  State.  All 
forms  of  insanity  are  sujfliciently  dangerous,  but 
when  the  danger  is  clearly  established  by  the 
actual  commission  of  a  crime,  the  State  cannot 
justly  abandon  its  responsibility  by  permitting  its 
trial  court  to  lose  jurisdiction  of  the  case  for  a 
single  moment,  and  the  court  should  proceed  to 
enter  judgment  and  pronounce  sentence  in  accord- 

344 


The  New  Penology 

ance  with  the  welfare  and  safety  of  society  and 
the  prisoner  at  the  bar.  Doubt  as  to  a  prisoner's 
mental  or  moral  responsibility  should  not  be  per- 
mitted to  authorize  a  discharge  in  any  case.  The 
best  interests  of  society  and  of  the  individual  in 
all  cases  demand  the  immediate  detention  and 
proper  treatment  of  all  persons  who  commit 
crime,  and  the  duty  to  do  so  is  as  binding  upon 


Fig.    16.— Dyanometer.     (Ulmann.)      Tig.    17.— Cephalometrlc   Square. 


Fig.  18. — Goniometer,    (Toplnard.) 

345 


Causes  and  Cures  of  Crime 

society  as  is  the  duty  to  quarantine  and  treat  the 
victim  of  contagious  disease. 

But  the  new  penology  does  not  stop  with  a 
demand  for  the  classification  and  segregation  of 
prisoners  upon  the  basis  of  sanity  or  insanity. 
It  studies  all  the  physical  and  psychical  defects  of 
man. 

In  the  detection  of  defects  in  the  sensory  or 
motor  faculties,  in  the  discovery  of  neuroses  and 
for  the  purpose  of  aiding  in  the  observation  and 
classification  of  stigmata  of  degeneracy,  science 
now  employs  various  instruments  for  the  record- 
ing of  precise  data,  among  the  most  useful  being 
the  kymographion  (Fig.  4),  the  chronoscope 
(Figs.  5  and  6),  the  polygraph  (Fig.  7),  the 
Deprez  signal  (Fig.  8),  the  aesthesiometer  (Fig. 
9),  the  aglometer  (Fig.  10),  the  psychograph 
(Fig.  11),  the  sphygometer  (Fig.  12),  the  sphyg- 
momanometer (Fig.  13),  the  ergograph  (Fig. 
14),  the  dynamometer  (Figs.  15  and  16),  the 
cephalometric  square  (Fig.  17),  the  goniometer 
(Fig.  18),  the  calipers  (Figs.  19,  20,  21,  22,  23 
and  24),  the  glossodynamometer  (Fig.  25),  and 
the  palatograph  (Fig  26). 

Science  now  requires  a  complete  classification 
of  the  inmates  of  every  reformatory  with  a  view 
to  proper  segregation,  training  and  treatment.    I 

346 


The  New  Penology 


Fig.  19. — Calipers.    (Broca.) 


Fig.  20.— Calipers.    (Toplnard.) 


Fig.  21.— Sliding  Calipers.    (Topinard.) 

347 


Causes  and  Cures  of  Crime 

agree  with  Dr.  C.  A.  Ellwood,  Professor  of  Soci- 
ology in  the  University  of  Missouri,  that  "any 
classification  of  criminals  in  order  to  be  scientific, 
must  be  a  psychological  classification;"  although, 
as  he  very  appropriately  adds,  this  psychological 
classification  should  not  ignore  the  biological  ele- 
ment. 

The  principal  classifications  proposed  by  crim- 
inologists are  well  described  in  the  following  sum- 
mary by  Dr.  G.  Stanley  Hall 


.2 


"Ferri  makes  three  great  types  of  delinquents 
with  two  minor  varieties.  All  have  the  common 
traits  of  impulsiveness  of  abnormal  action  with 
either  absence  or  feebleness  of  resistance. 
These  are  as  follows :  ( i )  Criminals  by  birth  or 
instinct  with  hereditary  absence  of  moral  sense, 
without  feeling  for  the  suffering  of  their  victims, 
with  cynicism,  indifference,  and  absence  of  re- 
morse afterward,  and  with  improvidence  of  the 
consequence  of  their  actions.  (2)  The  insane 
criminal,  a  variety  of  the  preceding  class.  In 
these  cases  there  may  be  good  conduct  preceding 
the  crime,  but  with  a  fixed  idea  of  repulsion  to 
it  and  with  efforts  to  subdue  it,  and  great  fury  in 
the  accomplishment  of  the  act  itself.  The  victims 
may  be  chosen  from  among  friends  with  no  ob- 
vious motive,  such  as  vengeance  or  cupidity. 
(3)  The  criminal  of  passion,  personal  or  social, 

2  Psych,  of  Adolescence,  vol.  1,  p.  389. 


The  New  Penology 


Fig.  22.— Caliper!. 


Fig.  23.— Small  Caliper  Rule. 


'm "H iiTwiiMi'iiiiiiiiiniinTi'  '"I'l'ir 

a  »  i»  «t  a  8  a 


Fig.  24.— Large  Caliper  Rule. 

349 


Causes  and  Cures  of  Crime 

involving  love,  anger,  honor,  and  followed  often 
by  a  sincere  and  deep  regret.  (4)  The  occasional 
criminal,  a  variety  of  the  passional,  characterized 
by  feebleness  of  the  moral  sense  and  with  a  con- 
stitution which  makes  him  the  victim  of  circum- 
stances. (5)  The  habitual  criminal,  an  interme- 
diate type  often  developed  from  the  occasional 
criminal,  with  the  moral  sense  finally  effaced, 
owing  to  an  imperfect  constitution  or  unfavor- 
able environment. 

"Lombroso  finds  two  general  types  of  criminals 
— first,  those  impelled  by  causes  external  to  their 
own  organization,  whether  occasional  or  habitual, 
and  here  includes  those  led  to  crime  by  passion. 
A  second  class  comprises  criminals  by  organic 
defects  and  includes:  (I)  Those  with  acquired 
defects,  whether  due  to  special  diseases,  paraly- 
sis, hysteria,  or  to  common  diseases  like  consump- 
tion, syphilis,  or  those  caused  by  senility,  drugs, 
alcohol,  or  those  with  an  insane  taint,  monomania, 
melancholia,  acquired  epilepsy,  etc.  (II)  Crimi- 
nals by  internal  organic  defect,  and  of  these  he 
makes  four  subdivisions :  ( i )  Epileptic,  degen- 
erative, asymmetrical,  those  with  obtuse  touch  and 
pain  sense,  color  blind,  lascivious,  irascible,  hyper- 
religious,  delirious,  impulsive,  ferocious.  (2) 
Moral  imbeciles,  often  macrocephalic,  without 
beard  and  with  abnormalities  of  nose,  ears,  hair, 
etc.,  with  a  psychic  character  like  that  of  epi- 
leptics, but  less  pronounced.  (3)  Criminals  with 
innate  psychotic  traits,  mattoids,  idiots,  cretins, 
monomaniacs,  but  not  quite  imbeciles.     (4)  Born 

350 


The  New  Penology 

criminals,  thieves,  assaulters,  violators,  etc.,  each 
with  their  own  peculiar  traits. 

"Marro's  categories  are  three :     (i)  Criminals 


Fitr.  26. — GIoBSodynamometer.    (F£r£.) 


Fig.   26.— Palatograph.     (Weeks.) 


by  external  causation,  whether  predisposing  or 
determining.  These  are  usually  lazy,  quarrel- 
some, and  perhaps  vagabonds,  neuropathic,  pre- 

351 


Causes  and  Cures  of  Crime 

coclous,  consumptive  or  alcoholic,  with  few  marks 
of  somatic  degeneration,  with  no  grave  lesions 
of  sensation  or  motility.  They  are  impulsive 
and  affectionate,  with  average  intellect,  may  be 
very  religious,  and  are  usually  curable.  (2) 
Criminals  in  whom  external  or  internal  causes 
counterbalance,  many  recidival  thieves,  partici- 
pants in  graver  crimes,  with  bad  heredity,  cupid- 
ity of  wealth  and  pleasure,  frequent  deformities 
of  skull  and  face,  rickety,  with  frequent  alterna- 
tions of  sensibiHty  and  intelligence,  now  normal 
and  now  defective,  with  precocious  malice,  feeble 
will,  and  doubtful  corrigibility.  (3)  Criminals 
in  whom  internal  causes  predominate  markedly 
over  external:  (a)  where  the  internal  causes  are 
hereditary,  prone  to  crimes  of  luxury,  incendi- 
arism, wounds  without  premeditation,  crimes  in 
unusual  age  or  youth,  with  special  susceptibility 
to  seasonal  changes  and  to  momentary  impulses, 
often  bland  or  sanguine  in  temperament,  with 
signs  of  arrested  development  in  body,  obtuse 
senses,  dementia,  ignorance,  and  rarely  curable; 
(b)  criminals  in  whom  the  predominant  internal 
causation  is  morbid,  thieves  committing  rapine 
and  depredation,  murder  with  premeditation,  of 
delinquent  parentage,  addicted  to  alcoholism, 
fondness  for  orgy  and  vengeance,  with  physical 
development  usually  normal,  but  the  facial  bones 
excessively  large,  lesions  and  scars  not  uncom- 
mon, fierce  physiognomy,  tattooing,  deformities 
of  the  skull,  exaggerated  reflexes,  low  sensibility 
and    a    high    degree    of    tolerance    for    alcohol, 

352 


The  New  Penology 

intelligence  perhaps  normal  but  moral  sense 
degraded,  suicidal  tendencies,  cynicism,  and  usu- 
ally incorrigibility;  (c)  criminals  who  are  such 
by  coincidence  of  internal  causes  and  those  mor- 
bidly acquired,  murderers  and  assassins,  drunk- 
ards, epileptics,  prone  to  exalted  and  rapt  states, 
mental  lesions,  etc.,  these  constituting  the  most 
dangerous  and  incurable  types  of  all." 

August  Drahms,  in  his  book  on  "The  Crimi- 
nal," proposes  the  simpler  classification  of  ( i ) 
instinctive  criminals,  (2)  habitual  criminals,  and 
(3)  single  offenders.  This  classification  is  ably 
supported  by  Dr.  Ellwood.  A  more  simple  classi- 
fication would  be  (i)  social  and  (2)  anti-social 
criminals.  Although  crime  is  always  an  anti- 
social act,  the  criminal  is  not  always  anti-social 
in  his  nature.  Under  the  heading  of  anti-social 
criminals  could  be  grouped  all  instinctive  or  born 
criminals  and  the  various  subdivisions  of  the  more 
depraved  and  dangerous  class  of  offenders.  The 
other  classes,  not  being  anti-social  in  their  nature, 
would  include  all  who  are  more  susceptible  of 
amendment  and  who  are  more  responsive  to  re- 
formatory treatment.  It  should  never  be  for- 
gotten, however,  that  the  human  being  is  always 
unique,  and  under  varying  conditions  we  shall 
find  that  men  will  not  always  remain  in  the  classes 

353 


Causes  and  Cures  of  Crime 

in  which  they  are  so  astutely  placed.  Criminals 
in  prison  cannot  be  catalogued  and  placed  on  a 
shelf  like  books  in  a  library.  They  will  be  found, 
in  most  cases,  to  grow  either  better  or  worse  ac- 
cording to  treatment;  but  the  effectiveness  of  the 
treatment  will  usually  be  governed  by  the  accu- 
racy of  the  diagnosis. 

That  the  reformatory  system  has  succeeded 
when  properly  tested  is  beyond  cavil.  It  is  no 
longer  necessary  to  cite  statistics  in  support  of 
the  fact.  It  is  admitted.  But  the  new  penology, 
having  penetrated  the  penitentiary  walls,  is  going 
farther  and  is  striking  deeper.  It  is  affecting,  and 
must  continue  to  affect  in  an  ever  increasing  de- 
gree, the  forms  of  criminal  procedure,  the  judg- 
ments of  courts  and  the  concepts  of  penal  justice. 
For  it  reads  the  laws  of  nature;  its  conclusions 
are  based  upon  a  study  of  the  body  and  the  mind 
of  man,  as  well  as  of  the  social  conditions  which 
surround  him,  and  its  judgments  are  "not  of  the 
letter,  but  of  the  spirit;  for  the  letter  killeth,  but 
the  spirit  giveth  life." 


354 


UC  SOUTHERN  REGIONAL  UBRARY  FAOUTY 


A     000  754  116     2 


